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[ { "docid": "18894190", "title": "", "text": "future, certain events will occur upon revocation” , and \"circumstantial evidence from which to infer likely intent * * * [is] always relevant and, indeed, may be more reliable than self-serving declarations.” Id. at 934. There, as here, the agency determined that the order could not be revoked with certainty that there was no likelihood of future unfair trading. The evidence in the record on which the ITA based this determination reveals that, for the period under review, the plaintiffs were eligible for benefits under at least the following seven of eight countervailable programs investigated: (1) Fund for the Promotion of Exports of Mexican Manufactured Products (\"FOMEX”); (2) the Guarantee and Development Fund for Medium and Small Industries (\"FOGAIN”); (3) Certificates of Fiscal Promotion (\"CEPROFI”); (4) National Industrial Development Plan (\"NIDP”) preferential discounts; (5) Industrial Equipment Fund (\"FONEI”); (6) State Tax Incentives; and (7) Import Duty Reductions and Exemptions. In examining the issue of whether this evidence is sufficient to support the ITA’s determination to deny plaintiffs’ revocation request, the court recognizes that the agency has broad discretion in the enforcement of the trade laws and that the ITA’s \"decision does not depend on the 'weight’ of the evidence, but rather on [its] expert judgment * * * based on the evidence of record.” Matsushita Electric Industrial Co. v. United States, 750 F.2d at 933. Moreover, its expertise is entitled to \"tremendous deference” by a reviewing court, which \"must accord substantial weight to an agency’s interpretation of a statute it administers”. Zenith Radio Corporation v. United States, 437 U.S. 443, 450-51 (1978). Viewing the record in this light, the court cannot conclude that the ITA’s determination not to revoke is unsupported by substantial evidence within the meaning of 19 U.S.C. § 1516a(b)(l)(B). To conclude otherwise would, at a minimum, require a more compelling showing by the plaintiffs of no likelihood of future subsidization. As acknowledged by Judge Nichols in his additional views in Mat-sushita, those urging a result contrary to an agency determination have untaken \"a heavy load indeed”. 750 F.2d at 937. The plaintiffs, in relying solely on their" } ]

[ { "docid": "8359224", "title": "", "text": "argues that an econometric study prepared by the Commission’s staff establishes that the volume of LTFV imports found here would significantly reduce domestic prices, and that this study so detracts from the evidence supporting a negative injury determination as to eradicate it, or at least to render it insubstantial. In effect, plaintiff argues that the ITC’s determination is unsupported by substantial evidence in the record. In reviewing the Commission’s determination, this court must sustain “a final negative injury determination by the ITC ... unless it is ‘unsupported by substantial evidence on the record, or otherwise not in accordance with law.’ 19 U.S.C. § 1516a(b)(l)(B) (1982).” American Spring Wire Corp. v. United States, 6 CIT ---, 590 F.Supp. 1273, 1276 (1984), aff'd sub nom. Armco, Inc. v. United States, 760 F.2d 249 (Fed.Cir.1985). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to sup port a conclusion.” Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 459, 95 L.Ed. 456 (1951), and Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)); and quoted in American Spring Wire Corp., 590 F.Supp. at 1276. “The court may not substitute its judgment for that of the [agency] when the choice is ‘between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo____’ ” American Spring Wire Corp., 590 F.Supp. at 1276 (<quoting Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir.1983), cert. denied, — U.S. ----, 104 S.Ct. 237, 78 L.Ed.2d 228 (1983) (quoting Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. at 464)). See also Sprague Electric Co. v. United States, 2 CIT 302, 310-11, 529 F.Supp. 676, 682-83 (1981). It is within the Commission’s discretion to make reasonable interpretations of the evidence and to determine the overall significance of any particular factor or piece of evidence. See S.Rep. 249, 96th" }, { "docid": "21461285", "title": "", "text": "administering the countervailing duty law. In this capacity, the Secretary is vested with broad discretion. Smith Corona Group v. United States, 713 F.2d 1568 (Fed.Cir.1983), cert, denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984). The countervailing duty law provides if Commerce finds a foreign government or entity is subsidizing the manufacture, production, or exportation of goods imported into the United States, and where required, the ITC issues an affirmative injury determination, then Commerce must impose countervailing duties on the goods equal to the amount of the subsidy. The Court in reviewing the present action must sustain Commerce’s countervailing duty determination unless it finds it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.A. § 1516a(b)(l)(B) (1982). It is also well settled that the administrative agency “has broad discretion in the enforcement of the trade laws and ... [its] ‘decision does not depend on the “weight” of the evidence, but rather on [its] expert judgment ... based on the evidence of the record.’ ” Manufacturas In-dustriales de Nogales, S.A. v. United States, — CIT -, -, 666 F.Supp. 1562 (1987) (quoting Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984)). The “substantial evidence test” restricts the scope of the Court’s review of the agency record. Much deference is given to the agency’s interpretation. As long as the interpretation is sufficiently reasonable, it will be upheld. Furthermore, it need not be the only reasonable interpretation. Atcor, Inc. v. United States, — CIT -,-, 658 F.Supp. 295, 299 (1987). In arriving at a clear understanding of the meaning of “substantial evidence,” it has been recognized: ‘Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Substantial evidence ‘is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed. Cir.1984) (quoting" }, { "docid": "20671677", "title": "", "text": "See Final Results, 64 Fed. Reg. 61,837. Jurisdiction The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (2000) and 28 U.S.C. § 1581(c) (2000). Standard of Review In reviewing a challenge to Commerce’s final determination in an an-tidumping administrative review, the Court will uphold Commerce’s determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law * * *.” 19 U.S.C. § 1516a(b)(l)(B)(i) (1994). I. Substantial Evidence Test Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966) (citations omitted). Moreover, “[t]he court may not substitute its judgment for that of the [agency] when the choice is ‘between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F. Supp. 1273, 1276 (1984) (quoting Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir. 1983) (quoting, in turn, Universal Camera, 340 U.S. at 488)). II. Chevron Two-Step Analysis To determine whether Commerce’s interpretation and application of the antidumping statute is “in accordance with law,” the Court must undertake the two-step analysis prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). Under the first step, the Court reviews Commerce’s construction of a statutory provi sion to determine whether “Congress has directly spoken to the precise question at issue.” Id. at 842. “To ascertain whether Congress had an intention on the precise question at issue, [the Court] employ[s] the ‘traditional tools of statutory construction.’” Timex V.I., Inc. v." }, { "docid": "8922915", "title": "", "text": "§ 1675, must sustain the ITA’s determination unless it is found to be “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1982). It has been established the administrative agency “has broad discretion in the enforcement of the trade laws and ... [its] ‘decision does not depend on the “weight” of the evidence, but rather on [its] expert judgment ... based on the evidence of the record.’ ” Manufacturas Industriales de Nogales, S.A. v. United States, — CIT —, —, 666 F.Supp. 1562, 1567 (1987) (quoting Matsushita Electric Industrial Co., Ltd. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984)). The Court is guided in weighing the evidence by the “substantial evidence test” which “restricts the scope of the Court’s review of the agency record. Much deference is given to the agency’s interpretation [in the administration of the antidumping law]. As long as the interpretation is sufficiently reasonable, it will be upheld. Furthermore, it need not be the only reasonable interpretation.” Hercules, Inc. v. United States, — CIT —, —, 673 F.Supp. 454, 463 (1987). Substantial evidence has been observed to encompass: ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Substantial evidence ‘is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); and quoting Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619-20, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) respectively). The focal point of the litigants’ first contention is 19 U.S.C. § 1677e and its corresponding regulation, 19 C.F.R. § 353.51. Section 1677e provides as follows: § 1677e. Verification of information (a) General rule Except with respect to information the verification of which is waived under section 1673b(b)(2) of this title, the administering" }, { "docid": "20845841", "title": "", "text": "Duty Administrative Reviews and Termination in Part of Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan (“Preliminary Results”), 61 Fed. Reg. 25,200. The final results of the reviews were published on April 27,1998. See Final Results, 63 Fed. Reg. 20,585. Jurisdiction The Court has jurisdiction over this matter pursuant to 19 U.S.C. § 1516a(a) (1994) and 28 U.S.C. § 1581(c) (1994). Standard of Review In reviewing a challenge to Commerce’s final determination in an an-tidumping administrative review, the Court will uphold Commerce’s determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law * * *.” 19 U.S.C. § 1516a(b)(l)(B)(i) (1994). I. Substantial Evidence Test Substantial evidence is “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence “is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 620 (1966) (citations omitted). Moreover, “[t]he court may not substitute its judgment for that of the [agency] when the choice is ‘between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. ’’’American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F. Supp. 1273, 1276 (1984) (quoting Penntech Papers, Inc. v. NLRB, 706 F.2d 18, 22-23 (1st Cir. 1983) (quoting, in turn, Universal Camera, 340 U.S. at 488)). II. Chevron Two-Step Analysis To determine whether Commerce’s interpretation and application of the antidumping statute is “in accordance with law,” the Court must undertake the two-step analysis prescribed by Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. (“Chevro n”), 467 U.S. 837 (1984). Under the" }, { "docid": "4694099", "title": "", "text": "U.S.C. § 1673 by imposing duties on imports of discrete CMT subassemblies when the ITC allegedly found only injury with respect to imports of major subassemblies. Commerce is given broad discretion to administer the antidump-ing law. Upon review of an antidumping duty determination, the Court must sustain the ITA’s determination unless it is \"unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1982). The substantial evidence test restricts the scope of the Court’s review of the agency record. If the ITA’s interpretation is sufficiently reasonable, it will be sustained and it need not be the only reasonable interpretation. American Lamb Co. v. United States, 4 Fed. Cir. (T) 47, 54, 785 F.2d 994, 1001 (1986); Atcor, Inc. v. United States, 11 CIT 148, 154, 658 F. Supp. 295, 299 (1987). Substantial evidence is recognized as: '[M]ore than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Substantial evidence 'is something less than the weight of the evidence and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s findings from being supported by substantial evidence.’ Matsushita Electric Industrial Co. v. United States, 3 Fed. Cir. (T) 44, 51, 750 F.2d 927, 933 (1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) and quoting Consolo v. Federal Marine Comm’n, 383 U.S. 607, 619-20 (1966) respectively). The imposition of antidumping duties is governed by 19 U.S.C. § 1673 et seq. The general scheme of the antidumping law is set forth in § 1673 in pertinent part as follows: If— (1) the administering authority determines that a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value, and (2) the Commission determines that— (A) an industry in the United States— (i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason, of imports of" }, { "docid": "21461286", "title": "", "text": "In-dustriales de Nogales, S.A. v. United States, — CIT -, -, 666 F.Supp. 1562 (1987) (quoting Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984)). The “substantial evidence test” restricts the scope of the Court’s review of the agency record. Much deference is given to the agency’s interpretation. As long as the interpretation is sufficiently reasonable, it will be upheld. Furthermore, it need not be the only reasonable interpretation. Atcor, Inc. v. United States, — CIT -,-, 658 F.Supp. 295, 299 (1987). In arriving at a clear understanding of the meaning of “substantial evidence,” it has been recognized: ‘Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Substantial evidence ‘is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed. Cir.1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); and quoting Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) respectively). 2. Court No. 83-07-00951 In challenging Commerce’s Final CVD Determination, plaintiff Hercules concurs with the determination that SNPE benefited from certain subsidies bestowed by the Government of France (GOF), but disputes other findings of Commerce as not supported by substantial evidence on the record or not otherwise in accordance with law. Hercules first argues that, although Commerce was correct in finding sales of military nitrocellulose subsidized sales of industrial nitrocellulose, nevertheless, Commerce incorrectly calculated the ad valo-rem subsidy amounts. Hercules argues Commerce mischaracterized the subsidy as an equity infusion, rather than a grant. Hercules maintains no stock was issued for this subsidy, and therefore, Commerce should not have treated this subsidy as an equity infusion, but as a grant. Hercules continues: Even if the subsidy should be treated as an equity infusion, Commerce’s methodology .., is incorrect because" }, { "docid": "21461358", "title": "", "text": "at less than its fair value, and (2) the Commission determines that— (A) an industry in the United States— (i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason of imports of that merchandise, then there shall be imposed upon such merchandise an antidumping duty, in addition to any other duty imposed, in an amount equal to the amount by which the foreign market value exceeds the United States price for the merchandise. 19 U.S.C.A. § 1673 (1982). Commerce has been given broad discretion to administer the antidumping law. Nevertheless, it has been noted that, “while the law does not expressly limit the exercise of that discretion with precise standards or guidelines, some general standards are apparent and these must be followed.” Smith Corona Group v. United States, 713 F.2d 1568, 1571 (Fed.Cir.1983), cert. denied, 465 U.S. 1022, 104 S.Ct. 1274, 79 L.Ed.2d 679 (1984). Upon review of the present action, the Court must sustain Commerce’s anti-dumping duty determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.A. § 1516a(b)(l)(B) (1982). This “substantial evidence test” restricts the scope of the Court’s review of the agency record. As previously stated, much deference is given to the agency’s interpretation. As long as the interpretation is sufficiently reasonable, it will be sustained. Furthermore, it need not be the only reasonable interpretation. Atcor, Inc. v. United States, — CIT —, —, 658 F.Supp. 295, 299 (1987). In arriving at a clear understanding of the meaning of “substantial evidence,” it has been recognized: ‘Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Substantial evidence ‘is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Consolidated Edison" }, { "docid": "18849831", "title": "", "text": "or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1982). See Seattle Marine Fishing Supply Co. v. U.S., 12 CIT 60, 679 F. Supp. 1119, 1125 (1988). Substantial evidence has been held to be more than a \"mere scintilla”, but sufficient to reasonably support a conclusion. Ceramica Regiomontana, S.A. v. U.S., 10 CIT 399, 405, 636 F. Supp 961, 966 (1986), aff’d, 810 F.2d 1137 (Fed. Cir. 1987). Because a reviewing court must accord due weight to an agency’s interpretation of a statute it administers, this Court will defer to the agency’s interpretation, provided it is \"sufficiently reasonable”. See American Lamb Co. v. U.S., 785 F.2d 994, 1001 (Fed. Cir. 1986). As stated in Matsushita Electric Industrial Co., Ltd. v. U.S., 750 F.2d 927, 933 (Fed. Cir. 1984), \"the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Discussion 1. Whether there is substantial evidence on the record to support ITC’s determination to include Sony’s Trinitron color picture tube in the like product finding with all color picture tubes, instead of as a separate like product. Under the antidumping statute the Commission is charged with determining the presence of a reasonable indication that (1) An industry in the United States— (A) is materially injured, or (B) is threatened with material injury, or (2) the establishment of an industry in the United States is materially retarded, by reason of imports of the merchandise which is the subject of the investigation by the administering authority * * * 19 U.S.C. § 1673b(a)(l) and (2) (1982). \"Industry” is defined in 19 U.S.C. § 1677(4)(A) (1982 and Supp. V 1987) as \"the domestic producers as a whole of a like product, or those producers whose collective output of the like product constitutes a major proportion of the total domestic production of that product.” \"Like product” is defined in turn as \"a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation * * 19 U.S.C. §" }, { "docid": "8359223", "title": "", "text": "(1984); Pig Iron from Canada, Finland and West Germany, Inv. Nos. AA 1921-72, 73, 74, T.C. Pub. No. 398 at 6 (1971); Elemental Sulphur From Mexico, Inv. No. AA 1921-92, T.C. Pub. No. 484 at 3 (1972). Plaintiff argues that the Commission failed to consider whether LTFV imports were a “contributing” cause, and that instead the Commission required evidence that the LTFV imports were a “material cause.” Plaintiff also argues that because the ITC determined that the LTFV imports were not a “material cause” of the domestic industry’s injury, it inferred that LTFV imports were a “contributing cause” of injury. Although the court will not rely solely on what might be a simple mistake in word usage, the court is concerned as to whether the Commission actually weighed causes and improperly discounted a contributing cause of injury. In this regard, plaintiff contends that there is substantial evidence in the record to support a finding that imports were indeed a contributing cause of injury and that the ITC, therefore, must have improperly weighed causes. Plaintiff specifically argues that an econometric study prepared by the Commission’s staff establishes that the volume of LTFV imports found here would significantly reduce domestic prices, and that this study so detracts from the evidence supporting a negative injury determination as to eradicate it, or at least to render it insubstantial. In effect, plaintiff argues that the ITC’s determination is unsupported by substantial evidence in the record. In reviewing the Commission’s determination, this court must sustain “a final negative injury determination by the ITC ... unless it is ‘unsupported by substantial evidence on the record, or otherwise not in accordance with law.’ 19 U.S.C. § 1516a(b)(l)(B) (1982).” American Spring Wire Corp. v. United States, 6 CIT ---, 590 F.Supp. 1273, 1276 (1984), aff'd sub nom. Armco, Inc. v. United States, 760 F.2d 249 (Fed.Cir.1985). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to sup port a conclusion.” Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Universal Camera Corp. v." }, { "docid": "18844267", "title": "", "text": "§ 1516a(b)(l)(B); American Spring Wire Corp. v. United States, 8 CIT 20, 590 F. Supp. 1273 (1984), aff’d sub nom. Armco, Inc. v. United States, 760 F. 2d 249 (Fed. Cir. 1985). The administrative agency \"has broad discretion in the enforcement of the trade laws and * * * [its] 'decision does not depend on the \"weight” of the evidence, but rather on [its] expert judgment * * * based on the evidence of the record.’ ” Manufacturas Industriales de Nogales, S.A. v. United States, 11 CIT, 531, 536, Slip Op. 87-87 at 9 (July 24, 1987) (quoting Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984)). Much deference is given to agency interpretation provided it is sufficiently reasonable; it need not be the only reasonable interpretation. Atcor Inc. v. United States, 11 CIT 148, 154, 658 F. Supp. 295, 299 (1987). The meaning of \"substantial evidence” has been described as follows: 'Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Substantial evidence 'is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); and quoting Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619 (1966) respectively). The Court may not substitute its judgment for that of the ITC, even though the Court might have made a different determination on a trial de novo. Maine Potato Council v. United States, 9 CIT 293, 613 F. Supp. 1237 (1985), American Spring Wire Corp., 8 CIT 20, 590 F. Supp 1273 (1984). The ITC majority of Commissioners, after an extensive analysis of the evidence presented, found any problems experienced by the domestic industry during the period under investigation were not occasioned by the subsidy of imports of other non-disc type tillage tools from Brazil." }, { "docid": "21461359", "title": "", "text": "determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C.A. § 1516a(b)(l)(B) (1982). This “substantial evidence test” restricts the scope of the Court’s review of the agency record. As previously stated, much deference is given to the agency’s interpretation. As long as the interpretation is sufficiently reasonable, it will be sustained. Furthermore, it need not be the only reasonable interpretation. Atcor, Inc. v. United States, — CIT —, —, 658 F.Supp. 295, 299 (1987). In arriving at a clear understanding of the meaning of “substantial evidence,” it has been recognized: ‘Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ Substantial evidence ‘is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); and quoting Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619, 86 S.Ct. 1018, 1026, 16 L.Ed.2d 131 (1966) respectively). 2. Court No. 83-09-01325 In challenging Commerce’s Final LTFV Determination, plaintiff SNPE claims Commerce erroneously refused to allow an adjustment for alleged differences in levels of trade between the United States and France. SNPE contends a level of trade adjustment is warranted in this situation because sales by SNPE in the United States and France are conducted at different levels of trade including discounted sales to a U.S. distributor, non-discounted sales to French end-users, and discounted sales to French bulk purchasers. SNPE contends the GATT and 19 C.F.R. § 353.19 require adjustments be made for level of trade differences. SNPE criticizes Commerce’s interpretation and implementation of the controlling regulation on this issue, 19 C.F.R. § 353.19. SNPE suggests the home market price to French end users should be adjusted by the amount of the discount given on sales to the" }, { "docid": "8922914", "title": "", "text": "have failed to show they were harmed by the ITA’s failure to publish the exact date the review would commence, especially when plaintiffs had actual notice of, and participated in, the administrative review without objection. Finally, defendant counters plaintiffs’ last arguments by denying plaintiffs were deprived of their due process rights and states that plaintiffs had actual notice of the administrative review, full opportunity to participate, and the ITA’s decision to distinguish the interested parties and disallow late responses was a reasonable exercise of the agency’s discretion. DISCUSSION The first issue before the Court is whether or not the ITA’s decision to reject Mo-moi’s alleged untimely filed submission of responses to the questionnaires is in contravention to 19 U.S.C. § 1677e(b) of the antidumping law, and therein unreasonable, unsupported by substantial evidence on the record, and not in accordance with law. Momoi challenges the results of the final administrative review stating the ITA’s failure to consider these cost submissions renders the review void. The Court, in reviewing challenges to administrative reviews governed under 19 U.S.C. § 1675, must sustain the ITA’s determination unless it is found to be “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1982). It has been established the administrative agency “has broad discretion in the enforcement of the trade laws and ... [its] ‘decision does not depend on the “weight” of the evidence, but rather on [its] expert judgment ... based on the evidence of the record.’ ” Manufacturas Industriales de Nogales, S.A. v. United States, — CIT —, —, 666 F.Supp. 1562, 1567 (1987) (quoting Matsushita Electric Industrial Co., Ltd. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984)). The Court is guided in weighing the evidence by the “substantial evidence test” which “restricts the scope of the Court’s review of the agency record. Much deference is given to the agency’s interpretation [in the administration of the antidumping law]. As long as the interpretation is sufficiently reasonable, it will be upheld. Furthermore, it need not be the only reasonable interpretation.” Hercules, Inc. v. United States, —" }, { "docid": "13546558", "title": "", "text": "to the Tariff Act of 1930 (“Act”), in reviewing a final determination of the International Trade Administration, this Court must uphold that determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1988). Substantial evidence has been defined as being “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). When applying the substantial evidence standard “’[t]he court may not substitute its judgment for that of the [agency] when the choice is between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo. * * American Spring Wire Corp. v. United States, 8 CIT 20, 22, 590 F. Supp. 1273, 1276 (1984), aff’d sub. nom. Armco, Inc. v. United States, 3 Fed. Cir. (T) 123, 760 F.2d 249 (1985) (quoting Universal Camera, 340 U.S. at 488). In determining whether to sustain the agency’s construction of the antidumping statute or regulations, the Court need not find the agency’s interpretation to “be the only reasonable interpretation or the one which the court views as the most reasonable.” ICC Indus., Inc. v. United States, 5 Fed. Cir (T) 78, 85, 812 F.2d 694, 699 (1987) (citing Consumer Products Div., SCM Corp. v. Silver Reed America, Inc., 3 Fed. Cir. (T) 83, 90, 753 F.2d 1033, 1039 (1985). Moreover, judicial review of the agency determination is limited. Timken Co. v. United States, 12 CIT 955, 962, 699 F. Supp. 300, 306 (1988), aff’d, 894 F.2d 385 (1990). “It is not within the Court’s domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record.” Id. (citations omitted). In addition, where, as in the instant case, the statute does not provide explicit guidance on a particular issue, the agency acts" }, { "docid": "18844268", "title": "", "text": "accept as adequate to support a conclusion.’ Substantial evidence 'is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.’ Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); and quoting Consolo v. Federal Maritime Comm’n, 383 U.S. 607, 619 (1966) respectively). The Court may not substitute its judgment for that of the ITC, even though the Court might have made a different determination on a trial de novo. Maine Potato Council v. United States, 9 CIT 293, 613 F. Supp. 1237 (1985), American Spring Wire Corp., 8 CIT 20, 590 F. Supp 1273 (1984). The ITC majority of Commissioners, after an extensive analysis of the evidence presented, found any problems experienced by the domestic industry during the period under investigation were not occasioned by the subsidy of imports of other non-disc type tillage tools from Brazil. The ITC observed that while there was some evidence of lost sales and underselling with respect to the non-disc agricultural tillage tools from Brazil, the low and relatively stable level of the market share of these imports did not indicate they were a cause of material injury. The Court finds the analysis of the facts by the ITC was reasonable and supported by substantial evidence on the record and was otherwise in accordance with law. The Court also finds the decision by the ITC to include only Wiese and not Herschel in the industry headcount was supported by substantial evidence on the record. Therefore, only the inclusion of Wiese in the ITC industry headcount shall be considered by the Court. Plaintiff maintains this is a case of first impression and urges the Court decide whether or not and under what circumstances the ITC should exercise its discretion under § 1677(4)(B) to exclude producers that play two roles, i.e., as both importer and domestic producer. Plaintiff, citing Freeport Minerals Co. v. United States, 776 F.2d 1029" }, { "docid": "18844266", "title": "", "text": "argument known to the ITC at the preliminary and final investigations, with respect to another importer, it did not raise the \"related parties” issue, concerning Wiese, with the ITC. The Question Presented The Court is presented with the question of whether or not the ITC’s decision not to exclude the firms of Wiese & Herschel from the investigation of the domestic non-disc agricultural tillage indus try, under the related parties section of the applicable statute, was unsupported by substantial evidence or otherwise not in accordance with law. The relevant statute provides as follows: (B) Related parties. — When some producers are related to exporters or importers, or are themselves importers of allegedly subsidized or dumped merchandise, the term \"industry” may be applied in appropriate circumstances by excluding such producers from those included in that industry. 19 U.S.C.A. § 1677(4)(B) (1980). Discussion The Court, upon review of the instant determination, must sustain the determination of the ITC unless it is unsupported by substantial evidence on the record or otherwise not in accordance with law. 19 U.S.C. § 1516a(b)(l)(B); American Spring Wire Corp. v. United States, 8 CIT 20, 590 F. Supp. 1273 (1984), aff’d sub nom. Armco, Inc. v. United States, 760 F. 2d 249 (Fed. Cir. 1985). The administrative agency \"has broad discretion in the enforcement of the trade laws and * * * [its] 'decision does not depend on the \"weight” of the evidence, but rather on [its] expert judgment * * * based on the evidence of the record.’ ” Manufacturas Industriales de Nogales, S.A. v. United States, 11 CIT, 531, 536, Slip Op. 87-87 at 9 (July 24, 1987) (quoting Matsushita Electric Industrial Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984)). Much deference is given to agency interpretation provided it is sufficiently reasonable; it need not be the only reasonable interpretation. Atcor Inc. v. United States, 11 CIT 148, 154, 658 F. Supp. 295, 299 (1987). The meaning of \"substantial evidence” has been described as follows: 'Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might" }, { "docid": "12415083", "title": "", "text": "steel cookware from Korea and Taiwan would likely lead to continuation or recurrence of material injury in the United States within a reasonably foreseeable time. See Review De-term. at 1. Therefore, the antidumping and countervailing duty orders remain in place. See 19 U.S.C. § 1675(d)(2). Standard of Review The court will uphold a determination by the Commission unless it is unsupported by substantial evidence in the administrative record or is otherwise not in accordance with the law. See section 516a(b)(l)(B)(i) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(b)(l)(B)(i) (1994). Substantial evidence is “something less than the weight of the evidence.” Consolo v. Federal Mar. Comm’n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966). Nonetheless, the Commission must present “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Gold Star Co. v. United States, 12 CIT 707, 709, 692 F.Supp. 1382, 1383-84 (1988) (internal quotation omitted), ajfd sub nom. Samsung Elec. Co. v. United States, 873 F.2d 1427 (Fed.Cir.1989). The possibility of drawing two inconsistent conclusions from the same evidence does not mean that the agency’s finding is unsupported by substantial evidence. See Consolo, 383 U.S. at 620, 86 S.Ct. 1018. In other words, the ITC’s determination will not be overturned merely because the plaintiff “is able to produce evidence ... in support of its own contentions and in opposition to the evidence supporting the agency’s determination.” Torrington Co. v. United States, 14 CIT 507, 514, 745 F.Supp. 718, 723 (1990) (internal quotation omitted), aff'd, 938 F.2d 1276 (Fed.Cir.1991). Discussion I. The Commission’s “Like Product” Determination To determine whether an industry in the United States is materially injured or threatened with material injury by reason of imports of the subject merchandise, the ITC must first define the “domestic like product” and the “industry” producing the product. See 19 U.S.C. §§ 1673(2), 1677(4), 1677(10) (1994). Section 1677 defines “domestic like product” as “a product which is like, or in the absence of like, most similar in characteristics and uses with the article subject to an investigation.” 19 U.S.C. §" }, { "docid": "23157721", "title": "", "text": "the Court of International Trade The court thoroughly examined and anaced the findings of the ITC to determine whether they were supported by substantial evidence, bearing in mind the limited standard of review, saying: The Federal Circuit has stressed that the judicial review of a Commission determination for substantial evidence is a “limited standard of review,” Matsushita Electric Industrial Co., Ltd. v. United States, 750 F.2d 927, 936 (Fed.Cir.1984), and the limited parameters of that standard have been elucidated in numerous decisions. Eg., Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1560 (Fed. Cir.1984); Phillip Bros. Inc. v. United States, Slip Op. 86-74, 11 CIT — [640 F.Supp. 1340] (July 17, 1986); American Spring Wire Corp. v. United States, 8 CIT 20, 590 F.Supp. 1273, 1276 (1984), aff'd sub nom., Armco Inc. v. United States, 760 F.2d 249 (Fed.Cir.1985). The court noted that the ITC’s findings set forth above and its further finding that revocation of the antidumping order would permit the plaintiffs greater price flexibility in fixing prices due to (1) the elimination of plaintiffs’ current expenses resulting from the way the dumping order is presently being administered, and (2) the removal of any exposure to potential dumping duties. These circumstances would allow plaintiffs to lower their prices. These findings led the ITC to conclude that material injury to United States industry would result from revocation of the antidumping order. The court held that this conclusion was reasonably based on the subsidiary findings of the ITC, which the court had reviewed and found to be supported by substantial evidence and in accordance with law. The court denied plaintiffs’ motion for judgment on the agency record and dismissed the action on November 13, 1986. The plaintiffs have appealed from that decision. Opinion In their appeal, the plaintiffs seek to overturn the decision of the court on the ground that it is not supported by substantial evidence. Since the decision of the court is based on the findings of the ITC, we must first determine whether the ITC’s findings are supported by substantial evidence. We held in Matsushita Electric Industrial" }, { "docid": "18849830", "title": "", "text": "Consequently, the Commission made a final affirmative injury determination! 52 Fed. Reg. 49, 209 (1987). After the Commission issued its final determination Commerce issued an antidumping duty order on CPTs imported from Japan. 53 Fed. Reg. 430 (1988). The final antidumping duty margin applicable to plaintiff was the \"all others” weighted average rate of 27.93 percent. 53 Fed. Reg. 430, 431 (1988). Questions Presented Plaintiff presents two questions for review. First, whether there is substantial evidence on the record to support the Commission’s determination to include Sony’s Trinitron color picture tube (Trini-tron tube) in the like product finding with \"all color picture tubes”, instead of as a separate like product. Second, whether the Trinitron tube should have been excluded from the Commission’s final affirmative injury determination on the grounds that it occupies a \"discrete and insular segment of the market” not in competition with other CPTs. Standard of Review In reviewing challenges to administrative reviews this Court must sustain the agency’s determination unless it is found to be \"unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1982). See Seattle Marine Fishing Supply Co. v. U.S., 12 CIT 60, 679 F. Supp. 1119, 1125 (1988). Substantial evidence has been held to be more than a \"mere scintilla”, but sufficient to reasonably support a conclusion. Ceramica Regiomontana, S.A. v. U.S., 10 CIT 399, 405, 636 F. Supp 961, 966 (1986), aff’d, 810 F.2d 1137 (Fed. Cir. 1987). Because a reviewing court must accord due weight to an agency’s interpretation of a statute it administers, this Court will defer to the agency’s interpretation, provided it is \"sufficiently reasonable”. See American Lamb Co. v. U.S., 785 F.2d 994, 1001 (Fed. Cir. 1986). As stated in Matsushita Electric Industrial Co., Ltd. v. U.S., 750 F.2d 927, 933 (Fed. Cir. 1984), \"the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Discussion 1. Whether there is substantial evidence on the record to support ITC’s determination to include Sony’s Trinitron color picture tube in" }, { "docid": "15072881", "title": "", "text": "731-TA-744 (Final), USITC Pub. 3035 (“Final Determination”); 62 Fed.Reg. 18,650 (ITC April 16,1997). The determination concerning the brake rotors is not being challenged here. Ill STANDARD OF REVIEW In reviewing the Commission’s determination, this Court must sustain a final negative injury determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(1994). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 2550, 101 L.Ed.2d 490 (1988) (citation omitted). Moreover, “the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency’s finding from being supported by substantial evidence.” Matsushita Elect. Indus. Co. Ltd. v. United States, 3 Fed. Cir. (T) 44, 51, 750 F.2d 927, 933 (Fed.Cir.1984) (citation omitted). The reviewing court may not, “even as to matters not requiring expertise ... displace the [agency’s] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In this regard “the court may not reweigh the evidence or substitute its judgment for that of the ITC.” Dastech Int’l, Inc. v. USITC, 963 F.Supp. 1220, 1222 (CIT 1997); Timken Co. v. United States, 12 CIT 955, 962, 699 F.Supp. 300, 306 (1988), aff'd, 8 Fed. Cir. (T) 36, 894 F.2d 385 (1990). IV DISCUSSION In order to make a final affirmative determination in its injury investigation, the ITC must find that: (A) an industry in the United States (i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment of an industry in the United States is materially retarded, by reason of imports of the merchandise.... 19 U.S.C. § 1671b(a)(l)(1994). With respect to LTFV imports, “material injury” is defined as “harm which is not inconsequential, immaterial, or unimportant.” 19 U.S.C. § 1677(7)(A)(1994). A The ITC’s Determination That The Domestic Brake Drum Industry Was Not" } ]

[ { "docid": "18472716", "title": "", "text": "MARIS, Circuit Judge The defendant, Delano Dowling, appeals from a judgment of the District Court of the Virgin Islands in favor of the plaintiff, Lydia Williams, in an action brought by the plaintiff, the widowed mother of Averill Williams, to recover damages for the death of her minor son resulting from a mortal wound caused by a shot from defendant’s shotgun discharged by defendant’s minor half-brother, Richard Francis. The case was tried without a jury. The trial judge found that the defendant was guilty of negligence in leaving the shotgun accessible to Richard Francis and, without making any specific findings as to damages, awarded the plaintiff $5,000 plus costs and attorney’s fees. On this appeal the defendant contends that the evidence does not establish any negligence on his part and that the law and the evidence do not support the award of any damages to the plaintiff. The right to recover damages for wrongful death is purely statutory since no such right was given by the common law. In the Virgin Islands such a right of action is given by section 76 of title 5, V.I.C. Section 75 of title 5, V.I.C., provides for an action for injury to a minor child to be brought by his parent or guardian to recover damages for the injury which the child has suffered, and both sections 75 and 77 of the same title provide that such an action shall not abate in case the injured child subsequently dies. In the present case Averill Williams died on his way to the hospital shortly after being shot and no claim is made on his behalf for the injury suffered by him. Accordingly sections 75 and 77 are not relevant to the case before us which must find its statutory support in section 76. The provisions of that section are as follows: “§ 76. Action for wrongful death “When the death of a .person not .being a minor, or when the death of a minor person who leaves surviving him either a husband or wife or child or children or father or mother, is caused" } ]

[ { "docid": "8994776", "title": "", "text": "to be held that the general two-year limitation does not apply to such suits and that § 263 does not supply a special limitation on the time for bringing them there would be no limitation whatever on such third-party suits. We do not think that either result could have been intended by the Legislature. If § 263 as we have construed it were less clear than we believe it to be, our construction would nonetheless be compelled by the legislative history of the Act. The Act, which now appears in title 24 of the Virgin Islands Code, is a codification of the Kean Workmen’s Compensation Act which was enacted by an Ordinance of the Municipal Council of St. Thomas and St. John, approved March 9, 1954. That Ordinance was taken directly, in somewhat abbreviated form, from the Workmen’s Accident Compensation Act of Puerto Rico, 11 L.P.R.A. § 1 et seq. 24 V.I.C. §§ 251, 263, Historical Note; Carmona v. De Jongh, D.C.1958, 3 V.I. 281, 157 F.Supp. 540; Caribbean Eng. Corp. v. Acting Com’r of Agr. & Labor, D.C.1958, 3 V.I. 339, 162 F.Supp. 193. Indeed, in the case of § 263 of the Virgin Islands Act, with which we are here concerned, the pertinent language is virtually identical, except for the title of the public officer involved, with that of present § 32 [formerly § 31] of the Puerto Rico Act. Under these circumstances there comes into play the rule of statutory construction which is settled in the Virgin Islands that the language ©f a Virgin Islands statute which has been taken from the statutes of another jurisdiction is to be construed to mean what the highest court of the jurisdiction from which it was taken had, prior to its enactment in the Virgin Islands, construed it to mean. Municipality v. Stakemann, D.C.1924, 1 V.I. 60; James v. Henry, D.C.1957, 3 V.I. 273, 157 F.Supp. 226; Williams v. Dowling, 3 Cir. 1963, 4 V.I. 465, 318 F. 2d 642; Caribe Construction Co. v. Penn, 3 Cir. 1965, 5 V.I. 180, 342 F.2d 964; Paiewonsky v. Paiewonsky, 3 Cir. 1971," }, { "docid": "7514135", "title": "", "text": "law expressly indicated or necessary to render its provisions effective. Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907); Bauers v. Heisel, 361 F.2d 581, 587 (3d Cir. 1966), cert. denied, 386 U.S. 1021 (1967). In these circumstances a proper construction of § 71 would therefore permit a wife to bring suit against a third party without joining her husband but would not authorize her to bring suit against her husband because the statute serves a meaningful purpose without being construed to abrogate the immunity doctrine. Plaintiff asserts, however, that § 71, adopted in 1957, was modeled after what was the territorial code of the then Territory of Alaska. She says that since the Supreme Court of Alaska later liberally construed the identical language to permit a wife to sue her husband in tort, Cramer v. Cramer, 379 P.2d 95 (Alas. 1963), we should feel compelled, to follow a similar course However, at the time the Virgin-Islands adopted § 71 in 1957, the last pronouncement by a court having jurisdiction over the Territory of Alaska had interpreted the language in a manner which continued the common law bar to interspousal suits. E.g., Decker v. Kedley, 148 Fed. 681 (9th Cir. 1906). Under the rule of statutory construction which we must follow in considering Virgin Islands legislation taken from other jurisdictions, we must presume that the enactment of § 71 was intended to carry with it the previous judicial interpretations placed upon the language of the Alaskan statute by the court having jurisdiction over that Territory. Williams v. Dowling, 318 F.2d 642, 643-44 (3d Cir. 1963). We believe that when the Virgin Islands Legislature adopted § 71 it must be considered to have intended to retain the doctrine of interspousal immunity. We also conclude that the legislature in adopting the statute continued to believe that the policies upon which the common law doctrine was based continued to have vitality. Despite opinions expressed in some jurisdictions, we think that the issue is, upon the facts of this case, still susceptible to serious debate. We therefore conclude that" }, { "docid": "7514134", "title": "", "text": "the Legislature must be considered to have enacted it against the background of the common law doctrine of interspousal immunity. At common law a wife could not bring suit against a third party or be sued by such party unless her husband was made a party to the suit. Speaking of a similar problem of statutory interpretation the Supreme Court said: “Had it been the legislative purpose not only to permit the wife to bring suits free from her husband’s participation and control, but to bring actions against him also for injuries to person or property as though they were strangers, thus emphasizing and publishing differences which otherwise might not be serious, it would have been easy to have expressed that intent in terms of irresistible clearness.” Thompson v. Thompson, supra at 618. The legislature did not so express itself. We are therefore guided by the familiar principle of statutory construction that statutes in derogation of the common law are to be given a strict construction and shall only abrogate that portion of the common law expressly indicated or necessary to render its provisions effective. Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907); Bauers v. Heisel, 361 F.2d 581, 587 (3d Cir. 1966), cert. denied, 386 U.S. 1021 (1967). In these circumstances a proper construction of § 71 would therefore permit a wife to bring suit against a third party without joining her husband but would not authorize her to bring suit against her husband because the statute serves a meaningful purpose without being construed to abrogate the immunity doctrine. Plaintiff asserts, however, that § 71, adopted in 1957, was modeled after what was the territorial code of the then Territory of Alaska. She says that since the Supreme Court of Alaska later liberally construed the identical language to permit a wife to sue her husband in tort, Cramer v. Cramer, 379 P.2d 95 (Alas. 1963), we should feel compelled, to follow a similar course However, at the time the Virgin-Islands adopted § 71 in 1957, the last pronouncement by a court having jurisdiction" }, { "docid": "16367908", "title": "", "text": "44, Section 7, of each code (which sections have now been incorporated in Section 7 of the 1944 Act) contained the whole of Section 1299 of the Code of Civil Procedure of Alaska verbatim. The latter section set forth only six grounds for divorce, however, while the section as enacted in the Virgin Islands codes contained eight, the two additional grounds being insanity occurring after marriage and incompatibility of temperament. Since these were grounds then unknown to the Alaska law but recognized under the Danish law then in force in the Islands it would seem most likely that they were added to preserve that existing law. This background throws light upon the intended meaning of the phrase as a statutory ground for divorce in the Virgin Islands. The decisions of the Supreme Court of New Mexico construing a similar provision of the divorce law of that state are also helpful in this connection. We conclude that while in compatibility of temperament in the Virgin Islands Divorce Law does not refer to those petty quarrels and minor bickerings which are but the evidence of that frailty which all humanity is heir to, it unquestionably does refer to conflicts in personalities and dispositions so deep as to be irreconcilable and to render it impossible for the parties to continue a normal marital relationship with each other. To use the ancient Danish phrase, the disharmony of the spouses in their common life must be so deep and intense as to be irremediable. It is the legal recognition of the proposition long established in the earlier Danish law of the Islands that if the parties are so mismated that their marriage has in fact ended as the result of their hopeless disagreement and discord the courts should be empowered to terminate it as a matter of law. The evidence in this case, the details of which it would serve no useful purpose to recount, supports a finding of the existence of such a state of incompatibility of temperament between the parties. The statute, however, provides that a divorce may only be granted at the" }, { "docid": "950254", "title": "", "text": "local legislation conferring power on some official to transfer prisoners, it would be necessary to obtain some sort of consent from the prisoners themselves if the possibility of legal complication is to be minimized. For such a worthy purpose, however, I believe that legislation could be obtained with reasonable dispatch. 1 V.I.Op.A.G. 224, 225 (1947). It is reasonable to assume that Section 4501, enacted a few years later, was intended, in part, to deal with this problem. Indeed, authorities in the Virgin Islands have acted on the assumption that Section 4501 provided the government with authority to order transfers to federal facilities. In 1965, the U. S. Bureau of Prisons and the Government for Virgin Islands entered into an agreement for the transfer of prisoners, purportedly under the authority of this statute. See Contract No. Jlc-20755, Apr. 1, 1965, reprinted in Brief for Appellant-Cross Appel-lee, at A1-A3. A number of prisoners have been transferred to federal facilities pursuant to this agreement. See 483 F.Supp. at 1111 n.16. The district court relied heavily on a subsequent amendment to Section 4501 to support its view of Section 4501. That amendment was enacted on August 27, 1973, fourteen days after Ali was moved to Puerto Rico. It changed Section 4501 so it would provide: The Commissioner is also authorized to use the facilities of the United States Bureau of Prisons in accordance with agreement between the Virgin Islands and the United States Department of Justice when the Commissioner determines that detention and/or correctional facilities within the Virgin Islands are inadequate to serve the best interests of the inmate or the general welfare of the Territory. Act of Aug. 27, 1973, Act No. 3469, 1973 V.I. Laws 235 (emphasis added). The court reasoned that the amendment, which permits territorial/federal transfers, would have been unnecessary if the prior statute already authorized them. The debates of the Legislature of the Virgin Islands when the amendment was enacted do not support the district court’s theory. Reprinted in Brief for Appellant-Cross Appellee at A13-A19. Instead, statements by Mr. Reisinger, an Assistant Attorney General for Legislation, reveal that the" }, { "docid": "12427533", "title": "", "text": "OPINION OF THE COURT SEITZ, Chief Judge. This case raises the interesting question as to whether the doctrine of inter-spousal immunity has continuing vitality in the Virgin Islands. Plaintiff, wife, appeals from an order of the district court of the Virgin Islands granting her husband’s motion to dismiss her complaint against him, D.C., 315 F.Supp. 752. Her complaint seeks damages allegedly resulting from defendant’s wilful conduct by which he intentionally caused her great humiliation. She alleges that, intending her to rely on the representations, he falsely represented that he loved her, that he wished to marry her so that he could spend his life with her, and that she relied upon this to her detriment in entering into marriage with him. She further claims that the marriage was a plan on his part to obtain a necessary “marriage of convenience” to enable him to secure and retain high public office and that he failed to disclose his intent to terminate the marriage after he had achieved the position, and completed the term, of this high office so that she would continue the relationship with him. The district court dismissed the complaint on the ground that the common law doctrine of interspousal immunity wholly barred plaintiff’s claim. We note preliminarily that it is not disputed that the law of the Virgin Islands controls the questions raised in this appeal. Plaintiff asks us to reverse the district court for any of the following reasons: (1) legislation governing the Virgin Islands abrogated the common law doctrine of interspousal immunity and now permits a wife to sue her husband in tort, (2) the doctrine of in-terspousal immunity should be judicially abrogated, or (3) the restriction against interspousal suits violates the Equal Protection Clause of the Fourteenth Amendment. The doctrine of interspousal immunity derives from the common law view that a husband and wife have a single legal existence. Consequently it was not legally possible for one spouse to maintain a tort action against the other, for such a suit would necessarily involve a suit by a legal entity against itself. Many American jurisdictions have" }, { "docid": "22871173", "title": "", "text": "grounds for divorce, however, while the section as enacted in the Virgin Islands codes contained eight, the two additional grounds being insanity occurring after marriage and incompatibility of temperament. Since these were grounds then unknown to the Alaska law but recognized under the Danish law then in force in the Islands it would seem most likely that they were added to preserve that existing law. This background throws light upon the intended meaning of the phrase as a statutory ground for divorce in the Virgin Islands. The decisions of the Supreme Court of New Mexico construing a similar provision of the divorce law of that state are also helpful in this connection. We conclude that while in compatibility of temperament in the Virgin Islands Divorce Law does not refer to those petty quarrels and minor bickerings which are but the evidence of that frailty which all humanity is heir to, it unquestionably does refer to conflicts in personalities and dispositions so deep as to be irreconcilable and to render it impossible for the parties to continue a normal marital relationship with each other. To use the ancient Danish phrase, the disharmony of the spouses in their common life must be so deep and intense as to be irremediable. It is the legal recognition of the proposition long established in the earlier Danish law of the Islands that if the parties are so mismated that their marriage has in fact ended as the result of their hopeless disagreement and discord the courts should be empowered to terminate it as a matter of law. The evidence in this case, the details of which it would serve no useful purpose to recount, supports a finding of the existence of such a state of incompatibility of temperament between the parties. The statute, however, provides that a divorce may only be granted at the instance of the “injured party”. We must, therefore, determine whether the plaintiff has met the burden of showing that he was an injured party in the sense contemplated by the statute. First we must consider whether the statutory phrase “injured party”" }, { "docid": "23483059", "title": "", "text": "in the United States under paragraph (1) shall not also be taxed in the Virgin Islands. The purpose, in other words, was to prohibit double taxation of the same article. The use in paragraph (2) of the word “Such” in the phrase “Such articles shipped from such islands to the United States” makes it clear that the reference is only to those articles shipped from the Virgin Islands to the United States which are described as taxable in paragraph (1). It is not suggested that internal revenue taxes are imposed in the United States upon the domestic manufacture of watches, clocks and timing apparatus. We conclude, therefore, that the Watch Production Act is not invalid by reason of section 28(d) of the Revised Organic Act. There can be no question as to the power of the Legislature of the Virgin Islands to impose an excise tax upon the manufacture of watches in the Territory. The power to impose taxes is a part of the legislative power granted by the Revised Organic Act to the territorial legislature and it has always been recognized as a rightful subject of legislation. H. I. Hettinger & Co. v. Municipality of St. Thomas & St. John, 3 Cir. 1951, 187 F.2d 774, 2 V.I. 509; Port Construction Co. v. Government of Virgin Islands, 3 Cir. 1966, 359 F.2d 663, 667-668, 5 V.I. 549, 558-559. The plaintiffs urge, however, that this particular taxing statute was not a rightful subject of legislation because its purpose and effect were solely to curtail the shipment to the United States of watches produced in the Virgin Islands in numbers in excess of one-ninth of the total United States consumption of watches, and thereby to forestall Congressional action which might render impossible the continuance of the Virgin Islands watch industry. It is certainly true that the Legislature had this possibility in mind in enacting the statute. The record is abundantly clear as to this. Section 301 of the Tariff Act of 1930, as added in 1954, permitted articles manufactured in the Virgin Islands with foreign materials to be admitted duty-free into" }, { "docid": "22871172", "title": "", "text": "Assembly in 1944. The Virgin Islands was the first American jurisdiction to adopt incompatibility as a ground for divorce, being followed in 1933 by New Mexico and in 1935 by Alaska. Under the Danish law which was in force in the Islands at the time of the adoption of the codes in 1920 and 1921 divorce upon grounds analogous to incompatibility of temperament had been recognized. Accordingly the inclusion of this ground in the codes did not involve a radical innovation in these Islands. On the contrary there is strong ground for thinking that it was inspired by the preexisting Danish law. The codes adopted by the Colonial Councils of the two Virgin Islands municipalities in 1920 and 1921 were taken largely from the codes of the Territory of Alaska and Title III, chapter 44, Section 7, of each code (which sections have now been incorporated in Section 7 of the 1944 Act) contained the whole of Section 1299 of the Code of Civil Procedure of Alaska verbatim. The latter section set forth only six grounds for divorce, however, while the section as enacted in the Virgin Islands codes contained eight, the two additional grounds being insanity occurring after marriage and incompatibility of temperament. Since these were grounds then unknown to the Alaska law but recognized under the Danish law then in force in the Islands it would seem most likely that they were added to preserve that existing law. This background throws light upon the intended meaning of the phrase as a statutory ground for divorce in the Virgin Islands. The decisions of the Supreme Court of New Mexico construing a similar provision of the divorce law of that state are also helpful in this connection. We conclude that while in compatibility of temperament in the Virgin Islands Divorce Law does not refer to those petty quarrels and minor bickerings which are but the evidence of that frailty which all humanity is heir to, it unquestionably does refer to conflicts in personalities and dispositions so deep as to be irreconcilable and to render it impossible for the parties to" }, { "docid": "7514130", "title": "", "text": "she would continue the relationship with him. The district court dismissed the complaint on the ground that the common law doctrine of interspousal immunity wholly barred plaintiff’s claim. We note preliminarily that it is not disputed that the law of the Virgin Islands controls the questions raised in this appeal. Plaintiff asks us to reverse the district court for any of the following reasons: (1) legislation governing the Virgin Islands abrogated the common law doctrine of interspousal immunity and now permits a wife to sue her husband in tort, (2) the doctrine of interspousal immunity should be judicially abrogated, or (3) the restriction against interspousal suits violates the Equal Protection Clause of the Fourteenth Amendment. The doctrine of interspousal immunity derives from the common law view that a husband and wife have a single legal existence. Consequently it was not legally possible for one spouse to maintain a tort action against the other, for such a suit would necessarily involve a suit by a legal entity against itself. Many American jurisdictions have either substantially eroded the immunity doctrine or entirely abrogated it. However, at the last reading a majority of the states retain it despite frequent attacks on its underlying policy justifications. The justification for the doctrine is that it serves to further a policy of domestic harmony because tort actions between spouses tend to destroy harmony in the marital relationship. It is also claimed that the doctrine serves to minimize the danger of fictitious, fraudulent, and trivial claims. Thompson v. Thompson, 218 U.S. 611, 614-15 (1910); Prosser, Handbook of the Law of Torts 879-85 (3d ed. 1964); 1 Harper & James, Torts § 8.10, at 643-47 (1956); 41 C.J.S., Husband and Wife §§ 396, et seq.; 43 A.L.R.2d 626 (1969 Later Case Service). We turn to plaintiff’s contentions against this background. Plaintiff contends that the legislation now governing the Virgin Islands, when read in conjunction with certain provisions of the earlier Code, reflects an intent to completely abrogate the common law doctrine of interspousal immunity. Her reasoning goes this way: Title 2, Ch. 14, § 7 of the 1921" }, { "docid": "12427534", "title": "", "text": "office so that she would continue the relationship with him. The district court dismissed the complaint on the ground that the common law doctrine of interspousal immunity wholly barred plaintiff’s claim. We note preliminarily that it is not disputed that the law of the Virgin Islands controls the questions raised in this appeal. Plaintiff asks us to reverse the district court for any of the following reasons: (1) legislation governing the Virgin Islands abrogated the common law doctrine of interspousal immunity and now permits a wife to sue her husband in tort, (2) the doctrine of in-terspousal immunity should be judicially abrogated, or (3) the restriction against interspousal suits violates the Equal Protection Clause of the Fourteenth Amendment. The doctrine of interspousal immunity derives from the common law view that a husband and wife have a single legal existence. Consequently it was not legally possible for one spouse to maintain a tort action against the other, for such a suit would necessarily involve a suit by a legal entity against itself. Many American jurisdictions have either substantially eroded the immunity doctrine or entirely abrogated it. However, at the last reading a majority of the states retain it despite frequent attacks on its underlying policy justifications. The justification for the doctrine is that it serves to further a policy of domestic harmony because tort actions between spouses tend to destroy harmony in the marital relationship. It is also claimed that the doctrine serves to minimize the danger of fictitious, fraudulent, and trivial claims. Thompson v. Thompson, 218 U.S. 611, 614-615, 31 S.Ct. 111, 54 L.Ed. 1180 (1910); Prosser, Handbook of the Law of Torts 879-85 (3d ed. 1964); 1 Harper & James, Torts, § 8.10, at 643-47 (1956); 41 C.J.S. Husband and Wife §§ 396, et seq.; 43 A.L.R.2d 626 (1969 Later Case Service). We turn to plaintiff’s contentions against this background. Plaintiff contends that the legislation now governing the Virgin Islands, when read in conjunction with certain provisions of the earlier Code, reflects an intent to completely abrogate the common law doctrine of interspousal immunity. Her reasoning goes this way:" }, { "docid": "8744071", "title": "", "text": "it was passed. The Virgin Islands Refinery Corporation has been permitted by this court to intervene as a party defendant. The defendant and the intervening defendant have each moved for a summary judgment in their favor upon the grounds that the plaintiffs were guilty of laches in delaying bringing the suit for eight months after the enactment of Act No. 3359 and that, in any event, they do not have standing to maintain the suit. The motion has been fully argued and is now ready for disposition. I shall consider first the question of standing. In Smith v. Government of Virgin Islands, 3 Cir., 329 F.2d 131, 4 V.I. 489, the Court of Appeals held that a taxpayer of the Virgin Islands has standing under 5 V.I.C. § 80 to maintain an action in the district court to restrain the illegal alienation of public property, the illegal expenditure of public funds or the illegal creation of public debt. The defendant and intervening defendant argue, however, that 5 V. I.C. § 80 authorizes only injunctive relief, while the present suit seeks a declaratory judgment. It may be a sufficient answer to this contention to note that the amended complaint asks for an injunction pendente lite. But regardless of that fact I am satisfied that a taxpayer in the Virgin Islands may maintain a suit in the district court for declaratory relief against illegal governmental action. As the Court of Appeals indicated in the Smith case, 5 V.I.C. § 80 is declaratory of the generally accepted common law rule that taxpayers may sue for relief against illegal governmental action. Normally such relief takes injunctive form, as indicated in 5 V.I.C. § 80. However, frequently a declaratory judgment, supplemented, if necessary, by a coercive order, may be an appropriate and quite adequate remedy. It was doubtless for this reason among many others that the Uniform Declaratory Judgments Act was adopted for the Virgin Islands as a part of the Virgin Islands Code. 5 V.I.C. §§ 1261-1272. The enactment of that uniform act superseded the federal Declaratory Judgments Act, 28 U.S.C. §§ 2201, 2202," }, { "docid": "12427540", "title": "", "text": "we should feel compelled to follow a similar course. However, at the time the Virgin Islands adopted § 71 in 1957, the last pronouncement by a court having jurisdiction over the Territory of Alaska had interpreted the language in a manner which continued the common law bar to interspousal suits. E.g., Decker v. Kedley, 148 F. 681 (9th Cir. 1906). Under the rule of statutory construction which we must follow in considering Virgin Islands legislation taken from other jurisdictions, we must presume that the enactment of § 71 was intended to carry with it the previous judicial interpretations placed upon the language of the Alaskan statute by the court having jurisdiction over that Territory. Williams v. Dowling, 318 F.2d 642, 643-644 (3d Cir. 1963). We believe that when the Virgin Islands Legislature adopted § 71 it must be considered to have intended to retain the doctrine of interspousal immunity. We also conclude that the legislature in adopting the statute continued to believe that the policies upon which the common law doctrine was based continued to have vitality. Despite opinions expressed in some jurisdictions, we think that the issue is, upon the facts of this case, still susceptible to serious debate. We therefore conclude that at least at this time resolution of the question is more appropriate for legislative treatment. Since the legislature has been silent thereon, we are governed by 1 V.I.C. § 4 which states that: “The rules of the common law, as expressed in the restatements of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands. * * * ” Since the Restatement of Torts explicitly refrains from speaking to the question of interspousal immunity, we look to the common law as generally applied in the United States. As we have stated, the common law even with many of its modifications would bar the present action. Hence, we do not accept plaintiff’s view that we should judicially abrogate the doctrine" }, { "docid": "8994777", "title": "", "text": "Agr. & Labor, D.C.1958, 3 V.I. 339, 162 F.Supp. 193. Indeed, in the case of § 263 of the Virgin Islands Act, with which we are here concerned, the pertinent language is virtually identical, except for the title of the public officer involved, with that of present § 32 [formerly § 31] of the Puerto Rico Act. Under these circumstances there comes into play the rule of statutory construction which is settled in the Virgin Islands that the language ©f a Virgin Islands statute which has been taken from the statutes of another jurisdiction is to be construed to mean what the highest court of the jurisdiction from which it was taken had, prior to its enactment in the Virgin Islands, construed it to mean. Municipality v. Stakemann, D.C.1924, 1 V.I. 60; James v. Henry, D.C.1957, 3 V.I. 273, 157 F.Supp. 226; Williams v. Dowling, 3 Cir. 1963, 4 V.I. 465, 318 F. 2d 642; Caribe Construction Co. v. Penn, 3 Cir. 1965, 5 V.I. 180, 342 F.2d 964; Paiewonsky v. Paiewonsky, 3 Cir. 1971, 8 V.I. 421, 446 F.2d 178. And see Willis v. Eastern Trust and Banking Co., 1898, 169 U.S. 295, 18 S.Ct. 347, 42 L.Ed. 752. In the case of Moreno v. Penzol, 1952, 73 P.R.R. 12, the Supreme Court of Puerto Rico applied the one-year limitation of § 31 [now § 32] of the Workmen’s Accident Compensation Act of Puerto Rico to bar a suit brought by an injured employee against a third party more than one year after the final decision of his case by the Manager of the State Insurance Fund, whose duties in this regard correspond to those of the Commissioner of Labor in the Virgin Islands. It thus appears that when the Workmen’s Compensation Act of the Municipality of St. Thomas and St. John was taken from the Puerto Rico law in 1954 it brought with it the judicially settled meaning that what is now 24 V. I.C. § 263 imposes a special one-year limitation upon suits for damages brought by injured employees, or the Commissioner of Labor as their subrogee," }, { "docid": "12427539", "title": "", "text": "be given a strict construction and shall only abrogate that portion of the common law ex pressly indicated or necessary to render its provisions effective. Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 437, 27 S.Ct. 350, 51 L.Ed. 553 (1907); Bauers v. Heisel, 361 F.2d 581, 587 (3d Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed. 457 (1967). In these circumstances a proper construction of § 71 would therefore permit a wife to bring suit against a third party without joining her husband but would not authorize her to bring suit against her husband because the statute serves a meaningful purpose without being construed to abrogate the immunity doctrine. Plaintiff asserts, however, that § 71, adopted in 1957, was modeled after what was the territorial code of the then Territory of Alaska. She says that since the Supreme Court of Alaska later liberally construed the identical language to permit a wife to sue her husband in tort, Cramer v. Cramer, 379 P. 2d 95 (Alaska 1963), we should feel compelled to follow a similar course. However, at the time the Virgin Islands adopted § 71 in 1957, the last pronouncement by a court having jurisdiction over the Territory of Alaska had interpreted the language in a manner which continued the common law bar to interspousal suits. E.g., Decker v. Kedley, 148 F. 681 (9th Cir. 1906). Under the rule of statutory construction which we must follow in considering Virgin Islands legislation taken from other jurisdictions, we must presume that the enactment of § 71 was intended to carry with it the previous judicial interpretations placed upon the language of the Alaskan statute by the court having jurisdiction over that Territory. Williams v. Dowling, 318 F.2d 642, 643-644 (3d Cir. 1963). We believe that when the Virgin Islands Legislature adopted § 71 it must be considered to have intended to retain the doctrine of interspousal immunity. We also conclude that the legislature in adopting the statute continued to believe that the policies upon which the common law doctrine was based continued to" }, { "docid": "7514136", "title": "", "text": "over the Territory of Alaska had interpreted the language in a manner which continued the common law bar to interspousal suits. E.g., Decker v. Kedley, 148 Fed. 681 (9th Cir. 1906). Under the rule of statutory construction which we must follow in considering Virgin Islands legislation taken from other jurisdictions, we must presume that the enactment of § 71 was intended to carry with it the previous judicial interpretations placed upon the language of the Alaskan statute by the court having jurisdiction over that Territory. Williams v. Dowling, 318 F.2d 642, 643-44 (3d Cir. 1963). We believe that when the Virgin Islands Legislature adopted § 71 it must be considered to have intended to retain the doctrine of interspousal immunity. We also conclude that the legislature in adopting the statute continued to believe that the policies upon which the common law doctrine was based continued to have vitality. Despite opinions expressed in some jurisdictions, we think that the issue is, upon the facts of this case, still susceptible to serious debate. We therefore conclude that at least at this time resolution of the question is more appropriate for legislative treatment. Since the legislature has been silent' thereon, we are governed by 1 V.I.C. § 4 which states that: “The rules of the common law, as expressed in the restatement of the law approved by the American Law Institute, and to the extent not so expressed, as generally understood and applied in the United States, shall be the rules of decision in the courts of the Virgin Islands. ...” Since the Restatement of Torts explicitly refrains from speaking to the question of interspousal immunity, we look to the common law as generally applied in the United States. As we have stated, the common law even with many of its modifications would bar the present action. Hence, we do not accept plaintiff’s view that we should judicially abrogate the doctrine in the factual situation alleged in her complaint. Finally plaintiff claims that the doctrine of inter-spousal immunity discriminates against women who marry in that it compels them to suffer damages, without recourse" }, { "docid": "17525907", "title": "", "text": "the view of a large majority of United States jurisdictions. The foregoing statute is impressive evidence that the Virgin Islands legislature intends such a rule to govern in the absence of specific legislation. It is also significant that Judge Young in Knowles v. Knowles, 354 F.Supp. 239, 9 V.I. 360 (D.C.V.I.1973), assumed it to be the law that in the Virgin Islands “a power to transfer real property . . . may be conferred only by statute . . . 354 F.Supp. at 242, 9 V.I. at 365. Furthermore, the legislature’s granting the district courts only a limited authority (as to the homestead) may represent a conscious policy decision. In any event, the legislature has the power to pass enabling statutes if it so desires. It is our view that this is a significant policy matter appropriate for legislative and not judicial treatment. Cf. Paiewonsky v. Paiewonsky, 446 F.2d 178, 8 V.I. 421 (3d Cir. 1971) (abrogation of interspousal immunity left to the legislature). Accordingly, we hold that authority to distribute real estate in a divorce proceeding can be conferred on a Virgin Islands divorce court only by statute. To date, the only such authority the legislature has seen fit to bestow on divorce courts is the power to award a homestead. 33 V.I.C. § 2305(d), supra. Our ruling does not leave courts and parties without means to effect a distribution of property. A divorce court may achieve a division of the marital estate by making a solely monetary award of alimony in gross as authorized by 16 V.I.C. § 109(3), supra. See Ayer v. Ayer, 9 V.I. 371 (D.C.V. I.1973). Also, either party may institute a separate action in the proper jurisdiction for partition of property held as tenants in common. See 28 V.I.C. §§ 451 et seq. (1962). Additionally, where one spouse has a particular equitable interest in property, e. g., where property was purchased by one spouse in the name of the other or where one spouse has made a material contribution to the other’s acquisition of property, a separate equity action may be maintained to realize" }, { "docid": "7514129", "title": "", "text": "OPINION OF THE COURT SEITZ, Chief Judge ■ This case raises the interesting question as to whether the doctrine of interspousal immunity has continuing vitality in the Virgin Islands. Plaintiff, wife, appeals from an order of the district court of the Virgin Islands granting her husband’s motion to dismiss her complaint against him. Her complaint seeks damages allegedly resulting from defendant’s wilful conduct by which he intentionally caused her great humiliation. She alleges that, intending her to rely on the representations, he falsely represented that he loved her, that he wished to marry her so that he could spend his life with her, and that she relied upon this to her detriment in entering into marriage with him. She further claims that the marriage was a plan on his part to obtain a necessary “marriage of convenience” to enable him to secure and retain high public office and that he failed to disclose his intent to terminate the marriage after he had achieved the position, and completed the term, of this high office so that she would continue the relationship with him. The district court dismissed the complaint on the ground that the common law doctrine of interspousal immunity wholly barred plaintiff’s claim. We note preliminarily that it is not disputed that the law of the Virgin Islands controls the questions raised in this appeal. Plaintiff asks us to reverse the district court for any of the following reasons: (1) legislation governing the Virgin Islands abrogated the common law doctrine of interspousal immunity and now permits a wife to sue her husband in tort, (2) the doctrine of interspousal immunity should be judicially abrogated, or (3) the restriction against interspousal suits violates the Equal Protection Clause of the Fourteenth Amendment. The doctrine of interspousal immunity derives from the common law view that a husband and wife have a single legal existence. Consequently it was not legally possible for one spouse to maintain a tort action against the other, for such a suit would necessarily involve a suit by a legal entity against itself. Many American jurisdictions have either substantially eroded" }, { "docid": "12427538", "title": "", "text": "that § 71 is applicable to tort actions, we think the Legislature must be considered to have enacted it against the background of the common law doctrine of interspousal immunity. At common law a wife could not bring suit against a third party or be sued by such party unless her husband was made a party to the suit. Speaking of a similar problem of statutory interpretation the Supreme Court said: “Had it been the legislative purpose not only to permit the wife to bring suits free from her husband’s participation and control, but to bring actions against him also for injuries to person or property as though they were strangers, thus emphasizing and publishing differences which otherwise might not be serious, it would have been easy to have expressed that intent in terms of irresistible clearness.” Thompson v. Thompson, supra at 618, 31 S.Ct. at 112. The legislature did not so express itself. We are therefore guided by the familiar principle of statutory construction that statutes in derogation of the common law are to be given a strict construction and shall only abrogate that portion of the common law ex pressly indicated or necessary to render its provisions effective. Texas & Pacific Ry. v. Abilene Cotton Oil Co., 204 U.S. 426, 437, 27 S.Ct. 350, 51 L.Ed. 553 (1907); Bauers v. Heisel, 361 F.2d 581, 587 (3d Cir. 1966), cert. denied, 386 U.S. 1021, 87 S.Ct. 1367, 18 L.Ed. 457 (1967). In these circumstances a proper construction of § 71 would therefore permit a wife to bring suit against a third party without joining her husband but would not authorize her to bring suit against her husband because the statute serves a meaningful purpose without being construed to abrogate the immunity doctrine. Plaintiff asserts, however, that § 71, adopted in 1957, was modeled after what was the territorial code of the then Territory of Alaska. She says that since the Supreme Court of Alaska later liberally construed the identical language to permit a wife to sue her husband in tort, Cramer v. Cramer, 379 P. 2d 95 (Alaska 1963)," }, { "docid": "16367907", "title": "", "text": "Laws of the Municipality of St. Thomas and St. John as originally enacted by the Colonial Council of the Municipality in 1921 and was carried over into the Divorce Law enacted by the Legislative Assembly in 1944 (section 7 (8); 16 V.I.C. § 104(a)(8)). The Virgin Islands was the first American jurisdiction to adopt incompatibility as a ground for divorce, being followed in 1933 by New Mexico and in 1935 by Alaska. Under the Danish law which was in force in the Islands at the time of the adoption of the codes in 1920 and 1921 divorce upon grounds analogous to incompatibility of temperament had been recognized. Accordingly the inclusion of this ground in the codes did not involve a radical innovation in these Islands. On the contrary there is strong ground for thinking that it was inspired by the preexisting Danish law. The codes adopted by the Colonial Councils of the two Virgin Islands municipalities in 1920 and 1921 were taken largely from the codes of the Territory of Alaska and Title III, chapter 44, Section 7, of each code (which sections have now been incorporated in Section 7 of the 1944 Act) contained the whole of Section 1299 of the Code of Civil Procedure of Alaska verbatim. The latter section set forth only six grounds for divorce, however, while the section as enacted in the Virgin Islands codes contained eight, the two additional grounds being insanity occurring after marriage and incompatibility of temperament. Since these were grounds then unknown to the Alaska law but recognized under the Danish law then in force in the Islands it would seem most likely that they were added to preserve that existing law. This background throws light upon the intended meaning of the phrase as a statutory ground for divorce in the Virgin Islands. The decisions of the Supreme Court of New Mexico construing a similar provision of the divorce law of that state are also helpful in this connection. We conclude that while in compatibility of temperament in the Virgin Islands Divorce Law does not refer to those petty quarrels and" } ]

[ { "docid": "1921966", "title": "", "text": "PER CURIAM. The plaintiff corporation seeks to enjoin the Alabama Commissioner of Revenue from collecting the assessment of a certain State use tax. Alabama gives a taxpayer the right to appeal an assessment to the Circuit Court of Montgomery County within thirty days of the assessment. Section 140, Title 51, Code of Alabama (1958). The taxpayer appealed on the thirty-first day. The Circuit Court held that the appeal was not timely filed, sustained the State’s plea of abatement, and dismissed the taxpayer’s appeal. See Dowda v. State, 1962, 274 Ala. 124, 145 So.2d 830. The taxpayer has not appealed from that judgment. Instead, the taxpayer filed a de novo proceeding in the district court attacking the validity of the assessment. We agree with the judgment of the district court, 216 F.Supp. 74. The State of Alabama provided “a plain, speedy, and efficient remedy” within the meaning of 28 U.S.C.A. § 1341. The district court very properly refused to issue an injunction against the State Commissioner of Revenue. Great Lakes Dredge and Dock Co. v. Huffman, 1943, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407. The judgment is affirmed." } ]

[ { "docid": "22096157", "title": "", "text": "is precisely this issue that we are required to resolve in the instant appeal. The Tax Injunction Act provides: The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. 28 U.S.C. § 1341 (emphasis added). This statute, which bars jurisdiction, and section 502(e)(1) of ERISA, which would appear to confer it, contain no cross references to each other. Section 514(d) of ERISA, however, provides that “[njothing ... shall be construed to alter, amend, modify, invalidate, impair, or supersede any law of the United States....” 29 U.S.C. § 1144(d) (1982). The applicability of the Tax Injunction Act, therefore, is apparently unaffected by ERISA. Accordingly, we must decide whether CLVT’s action for declaratory relief is barred by the Tax Injunction Act. See California v. Grace Brethren Church, 457 U.S. 393, 408, 411, 102 S.Ct. 2498, 2507, 2509, 73 L.Ed.2d 93 (1982) (Tax Injunction Act prohibits declaratory as well as injunc-tive relief); Air Polynesia, Inc. v. Freitas, 742 F.2d 546, 547 (9th Cir.1984) (same). In resolving the issue, we must determine, first, whether there is a plain, speedy, and efficient remedy available to CLVT in the California courts, and, second, whether Congress intended section 502(e)(1) of ERI-SA to function as an exception to the Tax Injunction Act. Franchise Tax Board v. Construction Laborers Vacation Trust, 463 U.S. at 20 n. 21,103 S.Ct. at 2852 n. 21. We answer the first question in the affirmative and the second in the negative, and conclude CLVT’s action is barred by the Tax Injunction Act. In assessing whether CLVT’s remedy in the California courts is plain, speedy, and efficient within the meaning of the Tax Injunction Act, we are guided by the Supreme Court’s decision in Rosewell v. La-Salle National Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981). In Rose-well the Court construed “plain, speedy and efficient” to require that a state court remedy meet certain minimal procedural criteria. 450 U.S. at 512, 101 S.Ct. at 1228. See" }, { "docid": "7833848", "title": "", "text": "U.S. 68, 73, 97 S.Ct. 219, 222, 50 L.Ed.2d 227 (1976); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 298, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407 (1943) (“Great Lakes”). This Court has held that Section 1341 also generally bars actions for declaratory relief against the assessment or collection of state taxes. See Housing Authority of the City of Seattle v. State of Washington, 629 F.2d 1307, 1310 (9th Cir. 1980); see also Great Lakes, 319 U.S. at 300, 63 S.Ct. at 1074. The jurisdictional bar of Section 1341 is not avoided by challenging the constitutionality of the state statute that authorizes the subject assessment or collection. Mandel v. Hutchinson, 494 F.2d 364, 366 (9th Cir. 1974) citing Matthews v. Rodgers, 284 U.S. 521, 525-26, 52 S.Ct. 217, 219, 76 L.Ed. 447 (1932). The issue here is whether California affords Capitol and EMI a “plain, speedy and efficient” remedy. Ill A We first address the state remedies available to Capitol. Under California law, a suit for an injunction, declaratory relief, or other equitable process to prevent or enjoin the assessment or collection of any taxes is forbidden. Section 32, Art. XIII, Calif. Const.; Cal.Rev. & Tax Code § 26101 (assessment or collection of corporate or bank taxes). California, however, does provide corporate taxpayers with administrative and judicial remedies for challenging assessments. The taxpayer may petition the FTB to seek authorization to use a method other than the unitary method of reporting. Cal.Rev. & Tax.Code § 25137. In addition, a taxpayer that believes it has been illegally or excessively assessed may file a protest with the FTB. Cal.Rev. & Tax. Code § 25664. If the protest is denied, the taxpayer may file an appeal with the California State Board of Equalization. Cal.Rev. & Tax.Code § 25667. Upon the disposition of such an appeal, and payment of the assessed tax, the taxpayer may bring an action in state court against the FTB for a refund. Cal.Rev. & Tax.Code § 26102. This Court has held that such administrative proceedings, followed, if necessary, by a trial de novo in state court," }, { "docid": "19378415", "title": "", "text": "exclusive jurisdiction” over any land purchased, condemned, or otherwise acquired “for all purposes except the administration of the criminal laws ... and the service of civil process of said State therein____” Pursuant to the leases between plaintiffs and the United States the federal government was to receive royalty payments for natural resources extracted from the production units which included portions of Barksdale. In September 1982 a representative of defendant McNamara, the Secretary of the Louisiana Department of Revenue and Taxation, informed plaintiffs that Louisiana would require severance tax payments for natural resources severed from the federal lands within Louisiana except for the royalty interest retained by the federal government. Plaintiffs have paid under protest the severance taxes assessed by defendant since October 1982. In the instant proceedings plaintiffs seek to recover the severance taxes paid under protest and request a declaratory judgment that the Louisiana severance tax statutes are unconstitutional insofar as they are applied to oil and gas production from Barksdale. The district court granted defendant’s motion to dismiss, holding that the Tax Injunction Act of 1937, 28 U.S.C. § 1341, bars plaintiffs’ refund suit in federal court. Plaintiffs assert federal question jurisdiction under 28 U.S.C. § 1341. Defendants do not challenge the existence of a substantial federal question but instead contend that federal jurisdiction is prohibited pursuant to section 1341. 28 U.S.C. § 1341 states: “The [federal] district courts shall not enjoin, suspend or restrain the assessment, levy, or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” Plaintiffs attempt to escape the jurisdictional bar of section 1341 by asking this Court to accept one of two propositions: (1) there is no “plain, speedy and efficient remedy” in the Louisiana state courts because the United States has exclusive jurisdiction over the property and claims in dispute pursuant to art. I, § 8, cl. 17 of the United States Constitution or, in the alternative, (2) a “federal instrumentality” exception to the Act applies. The district court rejected both of these contentions. We affirm the district" }, { "docid": "5418311", "title": "", "text": "of timely notices of appeal and cross appeal by Montana and the Indians. The Tax Injunction Act, 28 U.S.C. § 1341, denies federal court jurisdiction to entertain a suit seeking relief from state taxation so long as the state provides a “plain, speedy and efficient remedy” to an aggrieved taxpayer in state courts. As Montana provides such a remedy for challengers of the state income tax, we hold that § 1341 precluded the district court from entertaining this case. II. Analysis begins with examination of § 1341. That statute provides: The district court shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under the State law where a plain, speedy and efficient remedy may be had in the courts of such State. 28 U.S.C. § 1341. The scope of the jurisdictional bar of § 1341 is broader than its terms immediately indicate. It clearly bars injunctive relief. Decisions of this circuit apply it ■ to suits seeking federal declaratory relief from state taxation. Housing Authority of City of Seattle v. State of Washington, 629 F.2d 1307 (9th Cir. 1980); Mandel v. Hutchinson, 494 F.2d 364, 366 (9th Cir. 1974). In so holding, this court has recognized that any effort to obtain tax exemption or adjustment in federal court interferes with the fiscal operations of the state. Mandel, supra, 494 F.2d at 365-66 & n.1. Section 1341 embodies a strong federal policy of noninterference with state taxation and tax administration. Id. at 366. As a suit for a tax refund inevitably requires a court to interpret state taxing statutes and analyze the ambit of state taxing power, we held in Kelly v. Springett, 527 F.2d 1090 (9th Cir. 1975), that § 1341 jurisdictionally barred a 42 U.S.C. § 1983 suit in federal court which sought a refund of state taxes. Id. at 1093-94. In this case, also a § 1983 action, the district court enjoined collection of the Montana income tax, declared Indians exempt from payment and ordered the State to make refunds. Our prior decisions, outlined above, indicate that each of these forms of relief" }, { "docid": "13791519", "title": "", "text": "provides such a “plain, speedy and efficient remedy.” Section 140, Title 51, Code of Alabama, Recompiled 1958. This legislative enactment specifically authorizes any taxpayer to appeal from any final assessment made by the Alabama Department of Revenue. Said appeal is to be made to the Circuit Court of Montgomery County, Alabama, “within thirty days after such assessment is made final.” This enactment further authorizes the taxpayer against whom the assessment is made to file a supersedeas bond, in which event no taxes are actually paid until a final adjudication of the matter. Failure on the part of this taxpayer — assuming the action of the Circuit Court was correct in holding that the appeal was not timely filed — to avail itself of this State remedy does not mean that the State of Alabama has no “plain, speedy and efficient remedy” in such instances. Thus, the extraordinary relief which this plaintiff seeks to have this Court grant by way of injunction is to be refused. In addition to the case of Great Lakes Dredge & Dock Co. v. Huffman, supra, see Matthews v. Rodgers, 284 U.S. 521, 52 S.Ct. 217, 76 L.Ed. 447. For the foregoing reasons and for good cause, it is the ORDER JUDGMENT and DECREE of this Court that the motion of the defendant as Commissioner of Revenue of the State of Alabama, filed herein on March 26,1963, by and through the Attorney General of the State of Alabama, be and the same is hereby granted. It is the further ORDER, JUDGMENT and DECREE of this Court that this cause be and the same is hereby dismissed, with costs taxed against the plaintiff, for which execution may issue." }, { "docid": "1030983", "title": "", "text": "Commerce Clause. Since the plaintiffs have satisfied the Article III requirements, and since the three prudential considerations identified by the Supreme Court operate in their favor, the plaintiffs have standing to challenge the tax in question. II. The second issue that must be addressed before reaching the merits is whether the district court had jurisdiction to grant declaratory and injunctive relief despite the Anti-Injunction Act, 28 U.S.C. § 1341. That statute provides: The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. Under this statute, a district court lacks jurisdiction to grant either declaratory or injunctive relief if the state provides a plain, speedy and efficient remedy. California v. Grace Brethren Church, 457 U.S. 393, 408, 102 S.Ct. 2498, 2507, 73 L.Ed.2d 93 (1982); Aluminum Company of America v. Department of Treasury, State of Michigan, 522 F.2d 1120, 1122-23 (6th Cir.1975) (hereinafter Alcoa). The plain, speedy and efficient remedy requirement is procedural in nature. Grace Brethren, 457 U.S. at 411, 102 S.Ct. at 2509; Rosewell v. LaSalle National Bank, 450 U.S. 503, 512, 101 S.Ct. 1221, 1228, 67 L.Ed.2d 464 (1981). The requirement is satisfied if the state affords a full hearing and judicial determination at which all constitutional objections to the tax may be raised. Grace Brethren, 457 U.S. at 411, 102 S.Ct. at 2509; Rosewell, 450 U.S. at 514, 101 S.Ct. at 1229. In the present case, the Tennessee courts clearly did not provide a full hearing and judicial determination at which the plaintiffs could raise all constitutional objections; for as has previously been indicated, the Tennessee Supreme Court refused to consider the merits of the plaintiffs’ Commerce Clause claim on grounds of standing. Moreover, permitting a suit for declaratory and injunctive relief in this case is not inconsistent with the policies underly ing the Anti-Injunction Act. The overarching purpose of § 1341 is “to limit drastically federal district court jurisdiction to interfere with so important a local concern as the collection" }, { "docid": "21056085", "title": "", "text": "Court, which is a statutory court, are now expressly prohibited from entertaining suits to enjoin the collection of a State tax “where a plain, speedy, and efficient remedy may be had at law or in equity in the courts of such State.” 28 U.S.C.A. § 41(1). Likewise, the declaratory judgments statute, 28 U.S.C.A. § 400, which is applicable to the Constitutional courts, makes a similar exception. It is doubtful whether the Butler Act intended to do more than to state the general principle and whether it was intended to prevent suits when there is no plain, speedy and efficient remedy. The Circuit Court of Appeals for the First •Circuit stated in Paul Smith Const. Co. v. Buscaglia, 140 F.2d 900, that it had so far •not been called upon to decide whether or •not the Butler Act is subject to implied •exceptions. One can readily imagine cases •where there would be no remedy whatsoever in the Insular courts, in which case -the question might arise as to whether the Butler Act itself were constitutional as •prohibiting any action whatsoever to congest the validity of a tax. In such a situation, the question would be suggested as to ■whether or not the Butler Act itself does ■not violate the due-process clause of the ■Constitution, Amend. 14. In the view the ■Court takes of this case it is unncessary to -decide that question at this time. The plaintiffs contend that there is no •remedy open to them as Trustees to con-test the validity of the withholding tax Therein involved; that although Section 22 < (b) of the Income Tax Law purports to •guarantee the withholding agent against ■ claims or demands of other persons for the . amounts of any payments which they make •.under the withholding provisions, this af- - fords no remedy whatsoever to contest the ■validity of the tax at the time of payment; ■ that no procedure whatever is provided • for the enforcement of the guaranty; and -finally that if they should be sued by their 'beneficiaries and have to reimburse them for the amounts withheld there" }, { "docid": "23091569", "title": "", "text": "adequate the crucial question becomes whether the Mississippi remedy is in fact adequate, i. e. “plain, speedy and efficient.” Taxpayers have alleged numerous shortcomings in the Mississippi remedy which they claim render it inadequate. They summarize their attack on the Mississippi remedy by assailing it as “too costly and too uncertain to provide the ‘plain, speedy and efficient remedy’ called for by § 1341.” Taxpayers have made no effort to distinguish Charles R. Shepherd, Inc. v. Monaghan in which this court held “it is quite plain that the matter involved is a tax and that under the Johnson Act the federal court has no jurisdiction to restrain its collection where, as here, an adequate remedy is provided for the recovery back if improperly collected.” (emphasis added). The complaint sought declaratory and injunctive relief against alleged illegal Mississippi taxes. Upon our own review of the Mississippi remedy, we reaffirm Monaghan. The Mississippi Constitution requires that taxation be uniform and equal throughout the state and that property be taxed in proportion to its value. The Mississippi assessment scheme provides for notice that the rolls have been equalized, a means for the hearing of the objections of taxpayers, and for an appeal to the circuit court where the issue is tried de novo. Another statute provides for an appeal as a matter of right to the Mississippi Supreme Court. In addition, § 1340 of the Mississippi Code permits one or more taxpayers to enjoin the collection of any taxes “levied or attempted to be collected without authority of law.” Although the district court did consider this case on its merits, it also found that “These plaintiffs have a perfectly expeditious and valid remedy in the state court to assure the fact that their property is fairly and equally assessed under the requirements of our state constitution according to its fair and reasonable market value.” That finding by a district judge sitting in Mississippi merits significant weight; certainly it is not clearly erroneous. Taxpayers’ complaints that the Mississippi remedy is inadequate appear in reality to be an argument that a better remedy would be" }, { "docid": "2272569", "title": "", "text": "valorem tax review and appeals process is not an adequate remedy within the meaning of section 1341. First, Colonial argues that the basic elements of a functional tax system are missing in Georgia and, as a result, there can be no meaningful reform unless it has access to the injunctive powers of a federal court. Due to various perceived deficiencies, Colonial contends that the equitable relief afforded by Georgia state courts would be insufficient to address these systemic concerns. Second, Colonial argues that the multiplicitous number of suits it must pursue to appeal the valuation and assessment of its properties is not only inefficient and burdensome, but would also lead to disparate results among the different forums on the basic questions of valuation and equalization. In order to constitute a “plain, speedy, and efficient remedy,” the Supreme Court has stated that the remedies provided in a state court must provide a taxpayer “with a full hearing and judicial determination at which she may raise any and all constitutional objections to the tax.” Rosewell, 450 U.S. at 514, 101 S.Ct. at 1230. For instance, the Court in Rosewell found that the state remedy at issue was adequate because the taxpayer could raise her constitutional claims in a state-court refund procedure. Id. at 514, 101 S.Ct. at 1229-30; see also Grace Brethren Church, 457 U.S. at 413-16 & n. 31,102 S.Ct. at 2510-12 & n. 31. Applying this same standard, we have also held a state remedy to be inadequate when a taxpayer was effectively barred from ever raising his constitutional claims either through the statutory appeals process or any other state avenue of review. See Williams v. City of Dothan, 745 F.2d 1406, 1412-13 (11th Cir.1984). In assessing the adequacy of state court remedies, the Supreme Court, however, has instructed that the “plain, speedy, and efficient” exception to the Tax Injunction Act must be construed narrowly. Grace Brethren Church, 457 U.S. at 413, 102 S.Ct. at 2510. State remedies must only meet certain “minimal procedural criteria,” and a reviewing court should eschew any analysis of their substantive sufficiency so long as" }, { "docid": "21006250", "title": "", "text": "to institute their suit within the time specified, the judgment of the district court maintaining the exception and dismissing their suit was correct.” The fact that the State prescribes certain requirements to be met before a suit may be filed or sets a time limit in which suits must be filed does not mean that the State fails to meet the “plain, speedy and efficient remedy” test of 28 U.S.C.A. § 1341. In Henry v. Metropolitan Dade County, supra, the Fifth Circuit Court of Appeals said: “The obligation of the federal court is clear from a reading of the Johnson Act. The existence of a remedy in the State court effectively ousts the federal court of jurisdiction, and the initial suit filed by appellant was properly dismissed. The expiration of time in which the state suit might have been brought does not result in the destruction of the plain and simple remedy principle specified in the Johnson Act. To hold otherwise would allow any disgruntled taxpayer to simply wait until the statute of limitations had run in the state courts and then bring suit in the federal court. “Appellant’s further argument concerning the tolling of the sixty (60) day period by his filing suit in the federal court should have been advanced in the state litigation. The federal district court is not set up to review actions of the State courts. This suit for declaratory decree was properly dismissed.” And again in Lasker Boiler and Engineering Corp. v. Hamm, supra, the same Court said: “The plaintiff corporation seeks to enjoin the Alabama Commissioner of Revenue from collecting the assessment of a certain State use tax. Alabama gives a taxpayer the right to appeal an assessment to the Circuit Court of Montgomery County within thirty days of the assessment. Section 140, Title 51, Code of Alabama (1958). The taxpayer appealed on the thirty-first day. The Circuit Court held that the appeal was not timely filed, sustained the State’s plea of abatement, and dismissed the taxpayer’s appeal. See Dowda v. State, 1962, 274 Ala. 124, 145 So.2d 830. The taxpayer has not" }, { "docid": "238102", "title": "", "text": "— not to a case where a taxpayer contended that an unusual sanction for non-payment of a tax admittedly due violated his constitutional rights, an issue which, once determined, would be determined for him and all others. Id. at 77. Thus despite the fact the plaintiff did not pursue any state remedies, the court held that § 1341 did not bar his action. In Hargrave v. McKinney, 413 F.2d 320 (5th Cir. 1969), the Fifth Circuit held that § 1341 did not bar an action which challenged the constitutionality of a Florida statute. After analyzing these cases it is clear that § 1341 bars any action which seeks equitable relief which if granted would disrupt the state taxing process. Thus an action which seeks to enjoin the “assessment, levy or collection of any tax under state law” may be prohibited. Likewise, an action which seeks a declaratory judgment may also be barred, since a declaration that a particular state tax statute is unconstitutional would have a crippling effect upon the state taxing process. So long as the states provide plaintiffs with a “plain, speedy and efficient remedy” in the state courts, the plaintiffs are precluded from pursuing equitable relief in federal courts. The cases in this circuit are in accord. 28 East Jackson Enterprises, Inc. v. Cullerton, 523 F.2d 439 (7th Cir. 1975), on second petition for rehearing, 551 F.2d 1093 (7th Cir. 1977); Illinois Cent. R. Co. v. Howlett, 525 F.2d 178 (7th Cir. 1975); Gray v. Morgan, 371 F.2d 172 (7th Cir. 1966). In each case, the plaintiffs were seeking some form of equitable relief which, if granted, would have disrupted the state taxing process. In Cullerton, supra, the plaintiffs were seeking an injunction. In Illinois Cent. R. Co., supra, the plaintiffs were seeking a declarato ry judgment. In Gray, supra, the plaintiffs were seeking an injunction, declaratory judgment and a tax refund. In each case this court determined that the plaintiffs had an adequate state remedy and held that § 1341 barred the action. As Chief Judge Hastings stated in Gray: We hold that § 1341 means" }, { "docid": "9810171", "title": "", "text": "notified by certified mail of the hearing about the formation of the district, and the court did not believe that separate notice of the assessments themselves was required, as the establishment of the district and the assessments were all part of one proceeding for which notice need only be given once. The court also ruled for the defendants on the state law claims. Burris v. Sewer Improvement Dist. No. 147, 743 F.Supp. 655 (E.D.Ark.1990). This appeal followed. II. The Tax Injunction Act, 28 U.S.C. § 1341, forbids federal courts from exercising jurisdiction over certain kinds of claims involving state taxation: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341 (1988). The prohibition extends to declaratory judgment actions as well as to suits for injunctive relief, California v. Grace Brethren Church, 457 U.S. 393, 411, 102 S.Ct. 2498, 2509, 73 L.Ed.2d 93 (1982); Coon v. Teasdale, 567 F.2d 820, 822 (8th Cir.1977), and has been applied specifically to § 1983 suits in which the plaintiff seeks an injunction, Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981). Special assessments are taxes for purposes of § 1341. Tramel v. Schrader, 505 F.2d 1310, 1315-16 (5th Cir.1975); Chicago, St. P., M. & O. R.R. v. City of Randolph, 122 F.Supp. 302, 303 (D.Neb.1954); Lake Lansing Special Assessment Protest Ass’n v. Ingham County Bd. of Commrs., 488 F.Supp. 767, 772-73 (W.D.Mich.1980); see Williams v. City of Dothan, 745 F.2d 1406, 1411 (11th Cir.1984). The next question under § 1341 is whether state law affords a “plain, speedy and efficient remedy.” A state-court remedy is “plain, speedy and efficient” only if it provides the taxpayer with a full hearing and judicial determination at which he or she may raise any and all constitutional objections to the tax, Grace Brethren, 457 U.S. at 411, 102 S.Ct. at 2509 (quoting Rosewell, 450 U.S. at 514, 101 S.Ct. at 1229), subject" }, { "docid": "551665", "title": "", "text": "1977) (Gibbons, J., concurring); Gewertz v. Jackman, 467 F.Supp. 1047, 1056 (D.N.J.1979). But see Star Distributors, Ltd. v. Marino, 613 F.2d 4, 7 (2d Cir. 1980). Defendants do not raise this point on appeal. Defendants also contended in the district court that the action was barred by the Tax Injunction Act of 1937, 28 U.S.C. § 1341 (1976), which provides: The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. Since plaintiffs request, inter alia, a declaratory judgment that A-3677 is unconstitutional due to the manner in which it was adopted, defendants characterize this suit as one to enjoin, suspend or restrain the assessment, levy and collection of New Jersey’s increased corporate tax. The district court recognized that it was unclear whether the Act applies to actions for declaratory relief in a case such as this, see Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 299, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407 (1943); Garrett v. Bamford, 538 F.2d 63, 67 (3d Cir.), cert. denied, 429 U.S. 977, 97 S.Ct. 485, 50 L.Ed.2d 585 (1976), and whether New Jersey courts provided plaintiffs with an alternative “plain, speedy and efficient remedy” as is required by the Act. See Township of Hills-borough v. Cromwell, 326 U.S. 620, 66 S.Ct. 445, 90 L.Ed.2d 358 (1946); Robinson Protective Alarm Co. v. City of Philadelphia, 581 F.2d 371 (3d Cir. 1978). The court held that it need not decide the applicability of the Tax Injunction Act since even if it did not have jurisdiction to declare A-3677 unconstitutional the court would still have to address the plaintiffs’ principal claim that the Senate Rules were unconstitutional. The State raises this issue on appeal as an alternative ground on which to defend its judgment. We are in substantial agreement with the district court’s reasoning. Even assuming that the Tax Injunction Act deprives the district court of jurisdiction over so much of the complaint as requests a declaration that" }, { "docid": "5418310", "title": "", "text": "of the subclasses included Indians all of whom reside off but earn income on the Reservation. These were grouped by ethnic and tribal characteristics: (1) enrolled Crow, (2) enrolled members of other federally recognized tribes and (3) Indians not enrolled in any tribe. The remaining three subclasses included Indians who reside and earn income on the Reservation and were similarly grouped by ethnic and tribal characteristics. On cross motions for summary judgment, the district court held that the three subclasses of Indians residing and earning income on the Reservation were exempt from the state income tax while the remaining subclasses residing off the Reservation were subject to the tax. Injunctive, declaratory and refund relief was ordered. Montana acquiesced in the grant of a tax exemption to Indians in the first subclass-enrolled Crow residing and earning income on the Reservation and has not appealed that portion of the district court’s judgment. The grant of tax exemption to the remaining Reservation resident subclasses and the denial of exemption to the nonresident subclasses is before us by virtue of timely notices of appeal and cross appeal by Montana and the Indians. The Tax Injunction Act, 28 U.S.C. § 1341, denies federal court jurisdiction to entertain a suit seeking relief from state taxation so long as the state provides a “plain, speedy and efficient remedy” to an aggrieved taxpayer in state courts. As Montana provides such a remedy for challengers of the state income tax, we hold that § 1341 precluded the district court from entertaining this case. II. Analysis begins with examination of § 1341. That statute provides: The district court shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under the State law where a plain, speedy and efficient remedy may be had in the courts of such State. 28 U.S.C. § 1341. The scope of the jurisdictional bar of § 1341 is broader than its terms immediately indicate. It clearly bars injunctive relief. Decisions of this circuit apply it ■ to suits seeking federal declaratory relief from state taxation. Housing Authority of City of Seattle v." }, { "docid": "20993063", "title": "", "text": "Huffman, 319 U.S. 293, 298, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407 (1943). Far be it from this Court to waiver from this fundamental policy of the Federal judiciary, especially, as in this case, where the State has effectuated an adequate procedure for securing to the taxpayer the recovery of an illegally enacted tax. (See point 3 infra) 2. LACK OF JURISDICTION The practice of Federal Courts in refraining from issuing injunctions against the collection of State taxes was recognized and mandated by Congress over three decades ago. By an Act of August 21, 1937, Congress enacted the substance of what now provides that. “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341 (1948) This section, commonly known as the Johnson Act, and its predecessor, 28 U.S.C. § 41(1), have been applied scores of times by Federal Courts, virtually without exception in favor of the State taxing authorities. However, in addition to seeking injunctive relief, which is indisputably prohibited by the Johnson Act, Plaintiff requests declaratory relief in the form of a pronouncement by a three-judge court declaring the residency requirement of Article XIII, Section 1% void and unconstitutional. Several years after the predecessor of the Johnson Act was implemented, an ingenious attempt was made to circumvent the prohibition of that section by requesting declaratory rather than injunctive relief. The United States Supreme Court found it unnecessary to determine whether the Johnson Act, which spoke only of suits “to enjoin, suspend, or restrain the assessment, levy, or collection of any tax” also barred a suit for declaratory relief, for the Court was “of the opinion that those considerations which have led federal courts of equity to refuse to enjoin the collection of state taxes, save in exceptional cases, require a like restraint in the use of the declaratory judgment procedure.” Great Lakes Dredge and Dock Co. v. Huffman, 319 U.S. 293, 299, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407" }, { "docid": "13791518", "title": "", "text": "no plea of res judicata. The other contention raised by the defendant in this case, that is, that the complaint fails to state a claim against this defendant upon which relief can be granted, is well taken. The exercise of the jurisdiction of this Court in instances such as this where the party initiating the proceeding seeks an injunction to sustain or restrain the assessment or collection of a state tax is restricted by congressional enactment codified in § 1341, Title 28 of the United States Code: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” It appears, therefore, that the only appropriate inquiry that should be made in the preliminary stages of a suit to restrain the assessment or collection of a state tax is whether in such instances the state law provides a “plain, speedy and efficient remedy” in the state courts. The State of Alabama provides such a “plain, speedy and efficient remedy.” Section 140, Title 51, Code of Alabama, Recompiled 1958. This legislative enactment specifically authorizes any taxpayer to appeal from any final assessment made by the Alabama Department of Revenue. Said appeal is to be made to the Circuit Court of Montgomery County, Alabama, “within thirty days after such assessment is made final.” This enactment further authorizes the taxpayer against whom the assessment is made to file a supersedeas bond, in which event no taxes are actually paid until a final adjudication of the matter. Failure on the part of this taxpayer — assuming the action of the Circuit Court was correct in holding that the appeal was not timely filed — to avail itself of this State remedy does not mean that the State of Alabama has no “plain, speedy and efficient remedy” in such instances. Thus, the extraordinary relief which this plaintiff seeks to have this Court grant by way of injunction is to be refused. In addition to the case of Great Lakes Dredge &" }, { "docid": "868319", "title": "", "text": "the ground that the Federal District Coui't lacked jurisdiction to enjoin the assessment, levy or collection of taxes imposed under State law. We affirm. 28 U.S.C. § 1341 provides that: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such state.” We concluded in American Commuters Association v. Levitt, 405 F.2d 1148, 1151 (2 Cir. 1969), that “when there are adequate state remedies available, Section 1341 means what it so plainly says and that federal jurisdiction is still precluded by it.” Basing a complaint upon alleged violation of civil rights, 28 U.S.C. § 1343(3) and 42 U.S. C. § 1983 or of the Federal Constitution will not avoid the prohibition contained in Section 1341. Levitt, supra; see also Gray v. Morgan, 371 F.2d 172 (7 Cir. 1966), cert. denied, 386 U.S. 1033, 87 S.Ct. 1484, 18 L.Ed.2d 596 (1967). Plaintiffs’ argument that they are not seeking to claim illegality or that the assessment was illegal is no more than a play on words. Nor is their argument that they have no plain, speedy and efficient remedy in the New York Courts more convincing. As Judge Neaher observed, the Real Property Law, McKinney’s Consol.Laws, c. 50-a, of the State of New York subjects all real property in the State to taxation by counties, cities, towns, villages or school districts for municipal or school district purposes. (N.Y. Real Property Tax Law § 300 (McKinney 1972)). The Suffolk County Tax Act, enacted by the State Legislature, permits the taxing of real property in Suffolk County in accordance with the needs of its several town governments, villages and separate school districts. The remedies afforded for review of real property assessments are adequate. Plaintiffs may seek judicial review of their assessment under Section 700 of the Real Property Tax Law, and adverse determinations may be appealed, § 724. That the remedy is expeditious is shown by Section 700(3) which grants to such proceedings and appeals a preference over all other" }, { "docid": "21006251", "title": "", "text": "run in the state courts and then bring suit in the federal court. “Appellant’s further argument concerning the tolling of the sixty (60) day period by his filing suit in the federal court should have been advanced in the state litigation. The federal district court is not set up to review actions of the State courts. This suit for declaratory decree was properly dismissed.” And again in Lasker Boiler and Engineering Corp. v. Hamm, supra, the same Court said: “The plaintiff corporation seeks to enjoin the Alabama Commissioner of Revenue from collecting the assessment of a certain State use tax. Alabama gives a taxpayer the right to appeal an assessment to the Circuit Court of Montgomery County within thirty days of the assessment. Section 140, Title 51, Code of Alabama (1958). The taxpayer appealed on the thirty-first day. The Circuit Court held that the appeal was not timely filed, sustained the State’s plea of abatement, and dismissed the taxpayer’s appeal. See Dowda v. State, 1962, 274 Ala. 124, 145 So.2d 830. The taxpayer has not appealed from that judgment. Instead, the taxpayer filed a de novo proceeding in the district court attacking the validity of the assessment. “We agree with the judgment of the district court, 216 F.Supp. 74. The State of Alabama provided ‘a plain, speedy, and efficient remedy’ within the meaning of 28 U.S.C.A. § 1341. The district court very properly refused to issue an injunction against the State Commissioner of Revenue. Great Lakes Dredge and Dock Co. v. Huffman, 1943, 319 U.S. 293, 63 S.Ct. 1070, 87 L.Ed. 1407.” See, also, St. Louis & S. W. Ry. Co. v. Nattin, 27 F.2d 766 (W.D.La., 1927), and Simms Oil Co. v. Day, 31 F.2d 506 (CA 5, 1929). The plaintiffs in this case have made no effort to enforce their rights in the courts of the State of Louisiana, nor have they made any showing to this Court that a “plain, speedy and efficient remedy” may not be had in the courts of Louisiana. Until such a showing is made, and in view of the relief available under" }, { "docid": "13791517", "title": "", "text": "presented to the Circuit Court of Montgomery County, Alabama, was whether or not this plaintiff had timely filed its appeal as authorized and provided by the Legislature of the State of Alabama in Title 51, § 140, Code of Alabama, Recompiled 1958. The Circuit Court of Montgomery County, in the case of Lasker Boiler & Engineering Corporation, etc., v. State of Alabama, on January 2, 1963, sustained the plea in abatement by holding that said appeal on the part of Lasker Boiler & Engineering Corporation was not timely filed. There was no appeal taken by this plaintiff from said decree of the Circuit Court of Montgomery County, Alabama, to the Alabama appellate courts. Thus, the only adjudication made in that case by the Circuit Court of Montgomery County, Alabama, was upon said plea in abatement to the timeliness of said appeal; it was not upon the merits; it was not upon any of the issues plaintiff now seeks to raise in this case. Without prior adjudication by some court of competent jurisdiction, there can be no plea of res judicata. The other contention raised by the defendant in this case, that is, that the complaint fails to state a claim against this defendant upon which relief can be granted, is well taken. The exercise of the jurisdiction of this Court in instances such as this where the party initiating the proceeding seeks an injunction to sustain or restrain the assessment or collection of a state tax is restricted by congressional enactment codified in § 1341, Title 28 of the United States Code: “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” It appears, therefore, that the only appropriate inquiry that should be made in the preliminary stages of a suit to restrain the assessment or collection of a state tax is whether in such instances the state law provides a “plain, speedy and efficient remedy” in the state courts. The State of Alabama" }, { "docid": "7833847", "title": "", "text": "of EMI and its foreign subsidiaries. The Board Members filed motions to dismiss both actions. Capitol and EMI then filed motions for summary judgment. The district court treated the Board Members’ motions as motions for summary judgment, pursuant to Federal Rule of Civil Procedure 56. The district court denied Capitol’s and EMI’s motions and granted the Board Members’ motions on the ground that the Anti-Injunction Act precluded subject matter jurisdiction because a “plain, speedy and efficient” state court remedy existed for the claims asserted by Capitol and EMI. 28 U.S.C. § 1341. Capitol and EMI appeal from that order. II Section 1341 provides that “district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under state law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341. This statute has its roots in equity practice, the principles of federalism, and in recognition of the need of a state to administer its own fiscal operations, Tully v. Griffin, Inc., 429 U.S. 68, 73, 97 S.Ct. 219, 222, 50 L.Ed.2d 227 (1976); Great Lakes Dredge & Dock Co. v. Huffman, 319 U.S. 293, 298, 63 S.Ct. 1070, 1073, 87 L.Ed. 1407 (1943) (“Great Lakes”). This Court has held that Section 1341 also generally bars actions for declaratory relief against the assessment or collection of state taxes. See Housing Authority of the City of Seattle v. State of Washington, 629 F.2d 1307, 1310 (9th Cir. 1980); see also Great Lakes, 319 U.S. at 300, 63 S.Ct. at 1074. The jurisdictional bar of Section 1341 is not avoided by challenging the constitutionality of the state statute that authorizes the subject assessment or collection. Mandel v. Hutchinson, 494 F.2d 364, 366 (9th Cir. 1974) citing Matthews v. Rodgers, 284 U.S. 521, 525-26, 52 S.Ct. 217, 219, 76 L.Ed. 447 (1932). The issue here is whether California affords Capitol and EMI a “plain, speedy and efficient” remedy. Ill A We first address the state remedies available to Capitol. Under California law, a suit for an injunction, declaratory relief, or other" } ]

[ { "docid": "22927224", "title": "", "text": "times the award of compensatory damages is excessive and “close to the line” of constitutional propriety. Rubinstein counters that given the reprehensibility of the conduct at issue, the award, in equity, of a 3.5% pay raise, and the comparable nature of this award to others in this Circuit, the amount is within the realm appropriate for such a case. In the original panel opinion in Deffenbaugh-Williams v. Wal-Mart Stores, Inc., 156 F.3d 581 (5th Cir.1998), this Court extensively discussed the appropriate appellate approach to assessing a punitive damages award. See id. at 594-98. As in that case, Rubinstein does not respond in his brief to Tulane’s request that we either remit or remand the award of punitives. As in that case, Tulane mentions primarily in passing that the award of $75,000 exceeds the Constitutional limit as prescribed by the Due Process Clause. As in that case, the parties rely on a three-tiered analysis provided by Patterson and the Supreme Court’s opinion in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996), without acknowledging that BMW concerned the constitutional limits of a punitive damages award, not statutory or otherwise. As in that case, this matter was tried to a jury and yet the parties fail to acknowledge that Patterson concerned a bench trial, raising different and fewer Seventh Amendment considerations. Finally, as in that case, the parties fail to fully develop the numerous considerations that must underlie an application of BMW’s standards for assessing the Constitutionality of a punitive damages award. Thus, we find the reasoning of Deffen-baugh-Williams instructive on the issue of excessiveness, given the critical similarities between these cases, and we apply its reasoning in toto, and similarly conclude that a more fully developed approach to assessing the Constitutionality of a punitive damages award awaits a future day. In so doing, we agree with the Deffenbaughr-Williams court that special consideration must be given to Rubinstein’s failure to respond to the remand or remit issue. He simply offers us no guidance as to whether if we deem the award excessive he is" } ]

[ { "docid": "7539166", "title": "", "text": "renting the apartment to Lincoln and Weaver. The jury was further persuaded that Case misrepresented the unavailability of the apartment and that Weaver’s race was a motivating factor in that misrepresentation. There can be little doubt that Case, an experienced landlord, knew that discriminating against prospective tenants based on race violated federal law, and has for over 30 years. Indeed, Case’s defense at trial was that he did not discriminate at all, not that he was ignorant of the law prohibiting race discrimination in housing. The jury conclud ed that Case acted “maliciously, wantonly, oppressively, or intentionally with respect to violating Mr. Weaver’s rights under the Fair Housing Act” and awarded Weaver punitive damages accordingly. We are convinced that there was evidence, indeed legally sufficient evidence, to support the jury’s verdict. Case further argues that the punitive damages award was constitutionally excessive under BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996) and this Court’s decision in Watson v. Johnson Mobile Homes, 284 F.3d 568 (5th Cir.2002). In Gore, the Supreme Court outlined three guideposts courts should consider in determining whether a punitive damages award is unconstitutionally excessive: the degree of the defendant’s reprehensibility or culpability; the disparity between the harm or potential harm suffered by the victim and the punitive damages award; and the sanctions authorized or imposed in other cases for comparable misconduct. 517 U.S. at 574-75, 116 S.Ct. 1589; see also Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 434-35, 121 S.Ct. 1678, 149 L.Ed.2d 674. Recently, the Supreme Court reiterated the importance of the Gore guideposts, explaining that “[e]xaeting appellate review ensures that an award of punitive damages is based upon an ‘application of law, rather than a decisionmaker’s caprice.’ ” State Farm Mutual Auto. Ins. Co. v. Campbell, -U.S.-, 123 S.Ct. 1513, 1520-21, 155 L.Ed.2d 585 (2003) (quoting Cooper Indus., 532 U.S. at 436, 121 S.Ct. 1678). Regarding the first of the Gore guideposts, Case argues that he did not act reprehensibly at all, thus this factor should weigh in his favor. We cannot" }, { "docid": "13663600", "title": "", "text": "conclude that Dr. Shusterman’s report was changed so that the workplace would not be seen as exacerbating Geuss’ asthma. Consequently, there is suffi cient evidence to support the jury’s findings that punitive damages are warranted. The court must also decide whether to grant a remittitur. [W]here the verdict is so large as to shock the conscience of the court, the appropriate action for the court is to order plaintiff to remit the portion of the verdict in excess of the maximum amount supportable by the evidence or, if the remittitur [is] refused, to submit to a new trial. Dunn v. HOVIC, 1 F.3d 1371, 1383 (3d Cir.) (en banc) (internal quotation marks omitted), cert. denied, 510 U.S. 1031, 114 S.Ct. 650, 126 L.Ed.2d 608 (1993). The Supreme Court has recently articulated three guideposts to aid a court in determining whether a particular punitive damage award is excessive. BMW of North America, Inc. v. Gore, — U.S. -, - - -, 116 S.Ct. 1589, 1598-99, 134 L.Ed.2d 809 (1996). These guideposts are: the degree of reprehensibility of defendant’s conduct, the disparity between the actual or potential harm suffered and the punitive damage award, and the difference between the award and the civil or criminal penalties that could be imposed in comparable cases. Id. a. DEGREE OF REPREHENSIBILITY “Perhaps the most important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” BMW, — U.S. at -, 116 S.Ct. at 1599. In the case at bar, Pfizer did take a number of actions which appear to be inconsistent with a company acting with malice or reckless indifference to Geuss’ rights. For instance, it is undisputed that employees of Pfizer knew Geuss had asthma when he was hired in 1989; he was allowed to lie down when he was having breathing difficulties; Pfizer offered to place Geuss on leave with pay if he would authorize a dialogue between the doctors; and, even though he was suspended without pay on October 26, 1992, Geuss continued to receive medical and dental benefits until April 1993. A comparison" }, { "docid": "17444573", "title": "", "text": "finding on any specific investment had to be fixed at the amounts listed. Also, where as in National Fire there was no other rational explanation for how the jury could have arrived at the figure of one-half of the damages, here the possible explanations seem almost limitless. 2. Punitive Damages Johnson contends that the jury’s punitive damage award of $331,250 is untenable because the jury’s liability verdict is without evidentiary basis and is excessive. Because we have already found the liability verdict to be sound, we reject Johnson’s first argument. As for the alleged excessiveness of the punitive damages, Johnson cites BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). We review the district court’s determination of the constitutionality of punitive damages de novo. Cooper Indus., Inc. v. Leatherman Tool Group, 532 U.S. 424, 436-37, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). Under BMW, we consider three guideposts to determine whether a punitive damage award is grossly excessive such that it offends due process: (1) the degree of reprehensibility of defendant’s conduct; (2) the disparity between the harm or potential harm suffered by the plaintiff and his punitive damages award; and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases. BMW, 517 U.S. at 575, 116 S.Ct. 1589. The award must also be consistent with Illinois state law to be valid in this diversity case. See Medcom Holding Co. v. Baxter Travenol Labs., Inc., 106 F.3d 1388, 1397 (7th Cir.1997) (“Illinois law governs the substantive assessment of whether the evidence supports the damages awarded when liability is based on Illinois law.”) Illinois allows punitive damages to be awarded when “torts are committed with fraud, actual malice ... or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard of the rights of others.” Cirrincione v. Johnson, 184 Ill.2d 109, 234 Ill.Dec. 455, 703 N.E.2d 67, 70 (1998); Home Sav. and Loan Ass’n of Joliet v. Schneider, 108 Ill.2d 277, 91 Ill.Dec. 590, 483 N.E.2d 1225, 1228 (1985) (“While deceit" }, { "docid": "22722842", "title": "", "text": "demonstrated the efficacy of the punitive damages award. He noted that while no jury had held the policy unlawful, BMW had received a number of customer complaints relating to undisclosed repairs and had settled some lawsuits. Finally, he maintained that the disclosure statutes of other States were irrelevant because BMW had failed to offer any evidence that the disclosure statutes supplanted, rather than supplemented, existing causes of action for common-law fraud. The trial judge denied BMW’s post-trial motion, holding, inter alia, that the award was not excessive. On appeal, the Alabama Supreme Court also rejected BMW’s claim that the award exceeded the constitutionally permissible amount. 646 So. 2d 619 (1994). The court’s excessiveness inquiry applied the factors articulated in Green Oil Co. v. Hornsby, 539 So. 2d 218, 223-224 (Ala. 1989), and approved in Pacific Mut. Life Ins. Co. v. Haslip, 499 U. S. 1, 21-22 (1991). 646 So. 2d, at 624-625. Based on its analysis, the court concluded that BMW’s conduct was “reprehensible”; the nondisclosure was profitable for the company; the judgment “would not have a substantial impact upon [BMW’s] financial position”; the litigation had been expensive; no criminal sanctions had been imposed on BMW for the same conduct; the award of no pu nitive damages in Yates reflected “the inherent uncertainty of the trial process”; and the punitive award bore a “reasonable relationship” to “the harm that was likely to occur from [BMW’s] conduct as well as . . . the harm that actually occurred.” 646 So. 2d, at 625-627. The Alabama Supreme Court did, however, rule in BMW’s favor on one critical point: The court found that the jury improperly computed the amount of punitive damages by multiplying Dr. Gore’s compensatory damages by the number of similar sales in other jurisdictions. Id., at 627. Having found the verdict tainted, the court held that “a constitutionally reasonable punitive damages award in this case is $2,000,000,” id., at 629, and therefore ordered a remittitur in that amount. The court’s discussion of the amount of its remitted award expressly disclaimed any reliance on “acts that occurred in other jurisdictions”; instead," }, { "docid": "9762161", "title": "", "text": "the issue of damages only. AFFIRMED in PART; REVERSED and VACATED in PART; and REMANDED. . Coffel v. Stryker Corp., 284 F.3d 625, 630 (5th Cir.2002). . Doddy v. Oxy USA, Inc., 101 F.3d 448, 459 (5th Cir.1996). . The parties disputed precisely what it meant that the Project was put on \"hold.” DIJO argued that putting the Project \"on hold” was tantamount to cancelling the Project completely. The Defendants contended, on the other hand, that only the deadlines in the Project timetable were abated pending buyout negotiations. . Nowell By and Through Nowell v. Universal Elec. Co., 792 F.2d 1310, 1312 (5th Cir.1986). . Coffel, 284 F.3d at 630. . See id. . The jury instruction on breach of contract stated: \"Unless you find that these Defendants refused or made it impossible for DIJO, Inc. to construct and manage a Comfort Inn hotel in Tunica, Mississippi, then you must find for these Defendants as to the Plaintiff's claim for breach of contract.\" . Although few cases exemplify this type of breach of contract claim, Mississippi law appears to permit it. See, e.g., Bolling v. Red Snapper Sauce Co., 97 Miss. 785, 53 So. 394, 394-95 (1910) (recognizing that where a plaintiff failed to perform because of the defendant’s breach, the plaintiff could recover damages caused by the defendant's breach); Gravette v. Golden Saw Mill Trust, 170 Miss. 15, 154 So. 274, 275 (1934) (letting the jury decide whether a totality of circumstances could support an inference that the defendant breached its contract and intended to prevent the plaintiff from ever performing). . See Coffel, 284 F.3d at 630. . Although DIJO’s tortious interference claim was advanced against Hilton only, all of the Defendants appealed its submission to the jury, presumably because of our rule that, in cases alleging multiple theories of liability, a general verdict will be upheld only if each of the several theories is sustained. See Nowell, 792 F.2d at 1312. . The district court granted the Defendants’ Rule 50 motion on DIJO's claim of tortious interference with business relations, but let DIJO proceed on its claim" }, { "docid": "16494334", "title": "", "text": "for a new trial. It is true that “when a case is submitted to the jury on a general verdict, the failure of evidence or a legal mistake under one theory of the case generally requires reversal for a new trial because the reviewing court cannot determine whether the jury based its verdict on a sound or unsound theory.” Pan Eastern Exploration Co. v. Hufo Oils, 855 F.2d 1106, 1123 (5th Cir.1988); Nowell ex rel. Nowell v. Universal Electric Co., 792 F.2d 1310, 1312 (5th Cir.), cert. denied, 479 U.S. 987, 107 S.Ct. 578, 93 L.Ed.2d 581 (1986); Ward v. Succession of Freeman, 854 F.2d 780, 790 (5th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 2064, 104 L.Ed.2d 629 (1989). The result is different, however, when the reviewing court can be “reasonably certain that the jury did not base its verdict on an unsound theory.” Braun v. Flynt, 731 F.2d 1205, 1206 (5th Cir.), cert. denied sub. nom, Chic Magazine v. Braun, 469 U.S. 883, 105 S.Ct. 252, 83 L.Ed.2d 189 (1984). So, if any one of the district court’s list of claims were not supported by evidence or in some other way unsound, we would be bound to remand this cause for a new trial, absent evidence that the jury did not base its verdict on that unsound claim. But we need not do so today, because each claim was properly submitted and supported by the evidence, as is discussed below. Trinity and STM’s complaint on this point must, therefore, fail. C. Sufficiency of the Evidence As stated above, the district court set out a list of claims of fraud and misrepresentation, and the jury was asked whether Trinity and STM had committed the acts, and whether those acts proximately caused 01-ney’s damages. The jury answered all questions in the affirmative. Trinity and STM now complain that the evidence was insufficient to support the verdict on virtually each and every one of those points, and insufficient to support an affirmative finding of causation. Our standard for reviewing a sufficiency of the evidence point is to view the evidence" }, { "docid": "13663622", "title": "", "text": "amount of a punitive damage award should involve comparison of the court’s independent judgment on the appropriate amount with the jury’s award to determine whether the jury's award is so excessive as to work an injustice.”). . \"Although [BMW] examined the excessiveness of punitive damages awarded in a state court, the universal premise of Supreme Court’s due process reasoning suggests that the same considerations apply equally to the review of punitive damages awarded in federal court.” Lee v. Edwards, 101 F.3d 805, 809 n. 2 (2d Cir.1996) (citation omitted). . This court notes that the recent case of Coleman v. Kaye, 87 F.3d 1491 (3d Cir.1996), petition for cert. filed, U.S. Nov. 4, 1996 (No. 96-712) did reinstate a punitive damage award of $350,000 against a county defendant in a sex discrimination case. However, the possible excessiveness of this punitive damage award was not before the court so it did not address the excessiveness issue. Furthermore, in Coleman, there was evidence that one of the defendants committed two acts of intentional discrimination even after being put on notice of a prior act of discrimination against the same plaintiff. Id. at 1509. . See also Ramsey v. American Air Filter Co. Inc., 772 F.2d 1303, 1314 (7lh Cir.1985) (A punitive damages award \"must be supported by the record and may not constitute merely a windfall to the prevailing party.\"). In this case, the court finds that the jury's punitive damage award constituted a substantial windfall for Geuss. . See United States v. Shaw, 920 F.2d 1225, 1229-30 (5th Cir.), cert. denied, 500 U.S. 926, 111 S.Ct. 2038, 114 L.Ed.2d 122 (1991): This court has repeatedly held that any break in the chain of custody of physical evidence does not render the evidence inadmissible but instead goes to the weight that the jury should accord that evidence. Once the trial court makes a preliminary determination that a jury could reasonably conclude that the disputed authenticity has been established, the district judge may admit the evidence at his discretion, (citation omitted). .In its motion. Defendants objected to two other comments the court made" }, { "docid": "9776627", "title": "", "text": "Corp., 140 F.3d 1299, 1304 (9th Cir.1998) (internal citations omitted). However, even if a plaintiff is awarded damages after having shown a violation of Title VII, and, as in this case, of § 1981 and state law against wrongful discharge, the Supreme Court has held that that award may be reduced if it is so high that it violates due process, as indicated by the three factors set out in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). These factors are (1) the reprehensibility of defendant’s conduct; (2) the ratio between any compensatory award and the punitive award; and (3) a comparison of the damage award and any potential statutory penalty for the same act. See id. at 574-75, 116 S.Ct. 1589. Pavón presented sufficient evidence that a reasonable jury could determine that Swift’s conduct was reprehensible. The trial court found that the jury could have found that racial insults and slurs were a common occurrence on Swift’s shop floor and that management was aware of this behavior and took no meaningful steps to stop it. The jury could have concluded that Swift did not believe Pavon’s allegations and never seriously investigated the situation. Moreover, the jury could have found that Swift’s refusal to investigate stemmed from its blame-the-victim mentality, wherein it wrongly perceived Pavón as the problem, labeled him a troublemaker and terminated him. The trial court did not abuse its discretion in finding that this behavior was reprehensible enough to support the punitive damages awarded. Nor does the ratio of 250 to 1 between the punitive damage award and plaintiffs out-of-pocket loss support a reduction of the award. While courts do consider the relationship between the punitive award and out-of-pocket loss, a mere disparity between the two is not sufficient to violate due process. The focus of the inquiry under BMW is whether the punitive damages bear a reasonable relationship to compensatory damages. In this case, that ratio was 6:5. This is not excessive. In BMW, the court noted that ratios of 4:1 and 10:1 would not be excessive," }, { "docid": "20707508", "title": "", "text": "stressors. For instance, while the repeated denial of credit may be embarrassing or difficult to explain, arid certainly repeated and fruitless efforts to fix a single mistake can cause significant frustration, such distress is different in kind and degree than when a reporting error jeopardizes a plaintiffs ability to make important bill payments or become eligible for a job opportunity, or when the error begins to negatively affect something as personal as one’s marriage. Accordingly* the Court places less weight on cases such as Pinner and Stevenson, and more weight on cases such as Sloane and Zamora. Furthermore, the Court does not believe the present award to be incongruous with FCRA awards in this circuit as evidenced by Bach I, Boris, and Anderson, particularly given the nature of the alleged injuries and supporting testimony, and the sums involved. As such, the Court cannot say the verdict was excessive and declines to interfere in the jury’s calculation of Plaintiffs intangible harm. Defendant’s request for remit-titur of the emotional distress award' is denied. . 2. Punitive Damages Defendant submits that, even if the evidence were to support a finding of willful-riess, the jury’s punitive damages award was excessive- under the well-known factors set forth for assessing the constitutionality of punitive damages. Def. Br. at 17. The Court agrees. Three guideposts govern the evaluation of the jury’s $300,000 punitive damages award-: (i) the degree of reprehensibility; (ii) the disparity' between the harm, or potential harm, and the punitive damages award; and (iii) the difference between the amount awarded and civil penalties authorized or imposed in comparable cases. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). The Court addresses each guidepost in turn. i. Reprehensibility “[T]he most-important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Gore, 517 U.S. at 575, 116 S.Ct. 1589. To -that end, the Court should consider whether: “the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health" }, { "docid": "2555257", "title": "", "text": "■ OXY’s presence in Oklahoma. The evidence here focused on OXY’s Oklahoma activities, particularly in connection with the Rodman plant. With hindsight provided by the BMW opinion it might have been desirable to instruct the jury to restrict its consideration to Oklahoma’s “interest in protecting its own [citizens] and its own economy.” — U.S. at -, 116 S.Ct. at 1597. But we do not think the evidence here required such an instruction. III Second, a defendant must receive “fair notice ... of the conduct that will subject him to punishment.” — U.S. at -, 116 S.Ct. at 1598. BMW did not discuss this requirement except in the context of the severity of the penalty the defendant might expect. In the instant case we have no difficulty with this requirement. It has long been established in Oklahoma and elsewhere that tortious behavior that is particularly egregious will warrant punitive damages. See, e.g., Marshall v. El Paso Natural Gas Co., 874 F.2d 1373 (10th Cir.1989); Timmons v. Royal Globe Ins. Co., 653 P.2d 907 (Okla.1982). An Oklahoma statute in force when the instant case arose permitted punitive damages to exceed the amount of the actual damages if the judge made a finding of “clear and convincing evidence that the defendant is guilty of conduct evincing a wanton or reckless disregard for the rights of another, oppression, fraud or malice, actual or presumed.” Okla. Stat. tit. 23, § 9 (1986). There is no question but that OXY had fair notice that punitive damages could be awarded if plaintiffs proved the contentions in their complaint to the satisfaction of the jury. IV Third, defendant must receive “fair notice ... of the severity of the penalty that a State may impose.” — U.S. at —, 116 S.Ct. at 1598. It is with respect to this requirement that the Supreme Court set forth its three “guideposts:” (1) the degree of reprehensibility of the defendant’s conduct, (2) the ratio of the punitive award to the actual harm inflicted on the plaintiff, and (3) the comparison between the punitive award and the civil or criminal penalties that could" }, { "docid": "11993213", "title": "", "text": "on its repossession of equipment located on that lot. Although related, the wrongful acts leading to the Bank’s trespass and conversion were not identical. Missouri courts have required separate punitive damages instructions for each tort under very similar circumstances. See Weldon, 638 S.W.2d at 199. The district court’s separate treatment of the torts at trial was consistent with Missouri law, and we conclude that it is similarly appropriate to consider the individual punitive damage awards separately on the Bank’s challenge on appeal. We review de novo the district court’s ruling on the constitutionality of the punitive damage awards. Cooper Indus., Inc. v. Leathemnan Tool Group, Inc., 532 U.S. 424, 436, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). Although states have broad discretion to impose punitive damages for the legitimate state purposes of punishment and deterrence, those awards are subject to both procedural and substantive limitations under the due process clause of the fourteenth amendment. See State Farm, Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 416, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003); see also BMW of North America, Inc. v. Gore, 517 U.S. 559, 568, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). Our review of the constitutionality of punitive damage awards is guided by a three factor test set by the Supreme Court: “(1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases.” State Farm, 538 U.S. at 418, 123 S.Ct. 1513, citing Gore, 517 U.S. at 575, 116 S.Ct. 1589. In converting JCB’s property the Bank acted with “callous disregard” of JCB’s rights, and the reprehensibility of its conduct was comparable to the conduct which supported punitive damages in prior business cases. Diesel Machinery, 418 F.3d at 840; see also Asa/Brandt, Inc. v. ADM Investor Servs., Inc., 344 F.3d 738, 746-47 (8th Cir.2003). The Bank’s tortious conduct involved in the conversion was not “accidental or inadvertent.” Eden Elec.," }, { "docid": "11993220", "title": "", "text": "damages in the event that the award were found to be beyond constitutional bounds. JCB has not cited any comparable trespass cases with such a high ratio between the punitive damages and compensatory awards, but the Bank cited Jacque v. Steenberg Homes, Inc., 209 Wis.2d 605, 563 N.W.2d 154,156 (1997), a trespass case in which punitive damages of $100,000 withstood constitutional scrutiny although the underlying compensatory award was nominal. The Bank’s citation of this case implies that it would have had notice that its conduct could lead to penalties of up to $100,000. See Gore, 517 U.S. at 574, 116 S.Ct. 1589 (“Elementary notions of fairness ... dictate that a person receive fair notice not only of the conduct that will subject him to punishment, but also of the severity of the penalty that a State may impose.”). We conclude that in this case a reduction of the jury’s punitive damages award for trespass to one tenth the original amount would recognize the reprehensibility of the Bank’s trespass but not offend the constitutional concerns which have been articulated by the Supreme Court. An award of $108,750 in punitive damages would punish the Bank’s trespass and deter such conduct in the future, while not violating the Bank’s due process rights. This amount is also consistent with a comparable case cited by the Bank. We conclude that the amount of punitive damages for the Bank’s trespass should be remitted to $108,750. IV. The Bank objects to the interest awarded to JCB on the conversion claim, challenging the district court’s jury instructions and evidentiary rulings which JCB defends. We normally review a district court’s jury instructions for abuse of discretion, limiting our consideration to whether the instructions fairly and accurately present the evidence and law to the jury given the issues in the case. Eden Elec., 370 F.3d at 827. If the challenge has not been preserved for review by objection below, however, we apply a plain error standard, reversing only when the error would result in a miscarriage of justice if left uncorrected. See Right v. Auto Zone, Inc., 494 F.3d 727," }, { "docid": "14524061", "title": "", "text": "Hygh was far less traumatic than the brutality Rebecca DiSorbo endured. See Hygh, 961 F.2d at 361; see also Ismail, 899 F.2d at 186-87 (reinstating compensatory damages award based on inter alia the plaintiffs mental distress, even though the plaintiff did not offer testimony concerning counseling for his mental anguish). After carefully reviewing Rebecca DiSorbo’s injuries and the injuries and awards in the above cases, we conclude that compensatory damages in the amount of $250,000 for Pedersen’s excessive force and battery would appropriately fall within a reasonable range of compensatory damages awards. We therefore remand for a new trial on damages unless Rebecca DiSorbo agrees to remit $150,000 of her excessive force and battery compensatory damages award and accept $250,000 in compensatory damages. III. Excessiveness of Punitive Damages Award The jury awarded Rebecca DiSorbo a total of $1,275 million in punitive damages against Pedersen, including $625,000 for the excessive force claim and $650,000 for the federal and state abuse of process claims. Pedersen and the City argue that this award was excessive under the factors set forth by the Supreme Court in BMW of North America v. Gore, 517 U.S. 559, 574-75, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). A jury may “assess punitive damages in an action under § 1983 when the defendant’s conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56, 103 S.Ct. 1625, 75 L.Ed.2d 632 (1983). As with compensatory damages, the standard for appellate review of punitive damages awarded under § 1983 considers “whether the award is so high as to shock the judicial conscience and constitute a denial of justice.” Mathie, 121 F.3d at 813 (quotations omitted). The Supreme Court in Gore identified three “guideposts” for determining whether a punitive damages award is excessive: 1) the degree of reprehensibility; 2) the disparity between the harm or potential harm and the punitive damages award; and 3) the difference between the remedy and the civil penalties authorized or imposed in comparable cases. Gore," }, { "docid": "6664461", "title": "", "text": "that such conduct does not occur in the future. See Deters v. Equifax Credit Info. Servs., Inc., 202 F.3d 1262, 1273 (10th Cir.2000) (stating that “where the injury is primarily personal, a greater .ratio may be appropriate”). Furthermore, “[i]n determining the amount and effectiveness of exemplary damages to be awarded against a defendant, the court may take into consideration the defendant’s wealth or net worth.” Whitney v. Citibank, N.A., 782 F.2d 1106, 1119 (2d Cir.1986). The jury in the present case was made aware that Harbert-Yeargin is part of a global corporation, Raytheon Co., with a net worth of $11.8 billion at the time of the trial. In light of the defendant’s net worth, a higher punitive-to-compensatory-damages-award ratio is justified in order to serve Title VTI’s purpose of punishment and deterrence, because a smaller award would have had much less of an effect on a corporation of Harbert-Yeargin’s size. As the trial court stated, “even considering the amount of the fine only, a penalty of $800,000.00 for a corporation worth nearly 12 billion is comparable to a $3,000.00 fine for an individual.” Accordingly, I would hold that the amount of punitive damages awarded to Carlton was supported by the second part of the BMW analysis. c. Comparable cases Finally, Harbert-Yeargin argues that the size of Carlton’s punitive damage award is not supported by awards given in comparable cases. “Comparing the punitive damages award and the civil or criminal penalties that could be imposed for comparable misconduct provides a third indicium of excessiveness.” BMW, 517 U.S. at 583, 116 S.Ct. 1589. For a company of Harbert-Yeargin’s size, Title VII’s statutory cap provisions allow for the sum of compensatory and punitive damages to reach a maximum of $300,000. See 42 U.S.C. § 1981a(b)(3)(D). These provisions put Harbert-Yeargin on notice of the scale of punitive damages that could be awarded for violations of Title VII. See W & O, 213 F.3d at 617 (noting that Title VII’s statutory cap provisions for punitive damages “put [the defendant company] on notice that it could be liable for punitive damages up to the statutory cap,” which" }, { "docid": "9762160", "title": "", "text": "The Defendants also contend that the district court erred when it permitted Turner to testify about DIJO’s lost profits. Turner testified that the proposed hotel would have generated a net income of $638,000 per year. Based on that projection, he offered his opinion that the business would have been worth $5.45 million if sold in its fifth year. Turner was one of DIJO’s two principals, and his estimates were based on his own involvement in developing the Project. In light of the foregoing discussion of the boundaries of Rule 701, we cannot conclude that the district court abused its discretion in admitting Turner’s lost profits testimony. III. CONCLUSION Because we vacate the damages awarded by the jury and remand for a new trial on damages only, we need not reach the other issues raised by the Defendants on appeal. In conclusion, we AFFIRM the district court’s judgment insofar as it reflects the jury’s verdict of liability. We REVERSE the judgment as to damages, however, VACATE the jury’s award, and REMAND for a new trial on the issue of damages only. AFFIRMED in PART; REVERSED and VACATED in PART; and REMANDED. . Coffel v. Stryker Corp., 284 F.3d 625, 630 (5th Cir.2002). . Doddy v. Oxy USA, Inc., 101 F.3d 448, 459 (5th Cir.1996). . The parties disputed precisely what it meant that the Project was put on \"hold.” DIJO argued that putting the Project \"on hold” was tantamount to cancelling the Project completely. The Defendants contended, on the other hand, that only the deadlines in the Project timetable were abated pending buyout negotiations. . Nowell By and Through Nowell v. Universal Elec. Co., 792 F.2d 1310, 1312 (5th Cir.1986). . Coffel, 284 F.3d at 630. . See id. . The jury instruction on breach of contract stated: \"Unless you find that these Defendants refused or made it impossible for DIJO, Inc. to construct and manage a Comfort Inn hotel in Tunica, Mississippi, then you must find for these Defendants as to the Plaintiff's claim for breach of contract.\" . Although few cases exemplify this type of breach of contract claim," }, { "docid": "3343684", "title": "", "text": "so substantial as to be out of line with other presumed damages awards allowed under Illinois law. Third, North Atlantic requests that the award of punitive damages be reversed, arguing that they should not have been allowed at all, or in the alternative, that the award should be substantially remitted. We will consider these arguments separately. North Atlantic argues that the conduct at issue in this case does not meet the demanding standard for awarding punitive damages under Illinois law. In a diversity proceeding, state law governs whether punitive damages are appropriate. See Ross v. Black & Decker, Inc., 977 F.2d 1178, 1187 (7th Cir.1992). Punitive damages are available under Illinois law upon proof of actual malice. See Bronw & Williamson, 827 F.2d at 1142; see also J.I. Case Co. v. McCartin-McAuliffe Plumbing & Heating, Inc., 118 Ill.2d 447, 114 Ill.Dec. 105, 516 N.E.2d 260, 263 (1987) (explaining that punitive damages may be awarded when the defendant acts “with fraud, actual malice, deliberate violence or oppression, or when the defendant acts willfully, or with such gross negligence as to indicate a wanton disregard for the rights of others”). As explained above, the jury was instructed that in order to award punitive damages it must find that the defendant acted with “knowledge or conscious disregard” — a standard stricter than actual malice. Since this is essentially a sufficiency of the evidence argument, we ask only whether a rational jury could conclude that North Atlantic’s statements were made with knowledge or reckless (or conscious) disregard of their falsity. A rational jury could so conclude. Evidence was presented that in order to gain a business advantage over its competitor, North Atlantic made statements without regard to their truth. The nature and’ timing of the events are probative of North Atlantic’s willful intent — the combination of the cutthroat competition that existed between the companies, the substance of the letters, and the identity of the recipients supports the conclusion that North Atlantic deliberately used the letters to harm Republic’s business. We are more receptive to North Atlantic’s claim that the amount of punitive damages" }, { "docid": "23176969", "title": "", "text": "courts have upheld awards of over $100,000 in comparable cases, we conclude that the district court did not abuse its discretion in declining to grant a remitti-tur. 7.Punitive Damages In addition to compensatory damages, the jury awarded $20,000 in punitive damages following the presentation of evidence concerning Balsamico’s personal finances. Balsámico challenges these damages as also being excessive. Because the punitive damages were awarded on both the federal and the state claims, this Court will not disturb the award unless it “shocks the judicial conscience.” Mathie v. Fries, 121 F.3d 808, 817 (2d Cir.1997). Our application of this standard is guided by three factors identified by the Supreme Court: “(1) the degree of reprehensibility of the tortious conduct; (2) the ratio of punitive damages to compensatory damages; and (3) the difference between this remedy and the civil penalties authorized or imposed in comparable cases.” Lee v. Edwards, 101 F.3d 805, 809 (2d Cir.1996) (quoting BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)); see also Mathie, 121 F.3d at 816. We cannot conclude, based on our application of these factors alone, that the award of $20,000 in punitive damages exceeds the maximum permissible amount. There can be little question that the January 1999 assault was a thoroughly reprehensible incident, particularly in light of its racial motivation. The Supreme Court has noted, moreover, that physical assaults generally demonstrate a higher degree of reprehensibility than nonviolent crimes. See Gore, 517 U.S. at 575-76, 116 S.Ct. 1589. This Court has likewise found that whether a defendant’s conduct was violent and whether a defendant “acted with deceit or malice as opposed to acting with mere negligence” are relevant considerations in assessing the reprehensibility of conduct. Lee, 101 F.3d at 809. The ratio between compensatory damages and punitive damages is acceptable; the Supreme Court has upheld a punitive damage award of “more than 4 times the amount of compensatory damages.” Pac. Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 23-24, 111 S.Ct. 1032, 113 L.Ed.2d 1 (1991); see also Gore, 517 U.S. at 581, 116" }, { "docid": "20707509", "title": "", "text": "Defendant submits that, even if the evidence were to support a finding of willful-riess, the jury’s punitive damages award was excessive- under the well-known factors set forth for assessing the constitutionality of punitive damages. Def. Br. at 17. The Court agrees. Three guideposts govern the evaluation of the jury’s $300,000 punitive damages award-: (i) the degree of reprehensibility; (ii) the disparity' between the harm, or potential harm, and the punitive damages award; and (iii) the difference between the amount awarded and civil penalties authorized or imposed in comparable cases. BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 574-575, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). The Court addresses each guidepost in turn. i. Reprehensibility “[T]he most-important indicium of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Gore, 517 U.S. at 575, 116 S.Ct. 1589. To -that end, the Court should consider whether: “the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health pr safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident/’ State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 419, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003). ., Defendant asserts that its conduct could not be considered.reprehensible, because only one of the five State Farm factors is established: Plaintiffs financial vulnerability. Def. Br, at 18-19. In response, Plaintiff argues generally, without breaking down Defendant’s conduct according to the five listed factors, that Defendant’s conduct was reprehensible, because Defendant was on notice of its responsibility to assure maximum possible accuracy of consumer reports and of the precise error that occurred here, but failed to implement a policy or practice to address those errors. PI. Br. at 15-17. Plaintiff further argues that the five-factor State Farm analysis is not a good match for FCRA cases. Id. at 17-18. Specifically, Plaintiff suggests that the first two factors should carry" }, { "docid": "13663605", "title": "", "text": "BMW about the disparity between the punitive damage award and actual damages is not present here. See BMW, — U.S. at -, 116 S.Ct. at 1603, quoting TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 482, 113 S.Ct. 2711, 2732-33, 125 L.Ed.2d 366 (1993) (O’Connor, J., dissenting) (500 to 1 ratio between punitive damage award and harm to plaintiff “must surely ‘raise a suspicious judicial eyebrow.’ ”). This factor, therefore, weighs in favor of the reasonableness of the award. c.SANCTIONS FOR COMPARABLE MISCONDUCT “The third ‘indicium of excessiveness’ is provided by ‘[c]omparing the punitive damages award and the civil or criminal penalties’ for comparable misconduct.” Continental Trend Resources, Inc. v. OXY USA Inc., 101 F.3d 634, 640 (10th Cir.1996), quoting BMW, — U.S. at -, 116 S.Ct. at 1603. Under the ADA, damages for compensatory and punitive damages are capped at different amounts depending on the size of the employer. 42 U.S.C. § 1981a(b)(3). The back-pay award is not included in the limitation on damages. 42 U.S.C. § 1981a(b)(2). Neither side has presented any argument concerning the potential applicability of the damage caps. For the purposes of 42 U.S.C. § 1981a(b)(3), the award in this case totalled $250,250, which is within the limit for companies that have more than 500 employees. 42 U.S.C. § 1981a(b)(3)(D). Without any further information about the size of Pfizer, the court cannot conclusively determine whether the jury’s award is excessive in relation to the damage cap. d.REMITTITUR OF PUNITIVE DAMAGES After considering all of the factors discussed above, this court finds that the jury’s award of $150,000 shocks the court’s conscience, and therefore orders a remittitur of $132,500. In reaching this conclusion, the court relies heavily on the fact that Pfizer’s conduct is far less blameworthy than the conduct exhibited in other eases where large punitive damage verdicts were awarded. The court also is of the opinion that the liability issue was close. The court finds that a $17,500 punitive damage award is the maximum amount supported by the evidence. See Dunn, 1 F.3d at 1383 (court should order plaintiff to remit the" }, { "docid": "9991220", "title": "", "text": "trial, Biomet argued: Even though at best the only damages that Dr. Tronzo could have suffered in this case would have been a few thousand dollars in patent costs, the jury awarded a $7.1 million compensatory award coupled with a $20 million punitive award. Thus, Biomet’s ripeness argument is misplaced. The district court had ruled on the issue of punitive damages in its initial decision and had further responded to Biomet’s challenge to the appropriateness of the amount of punitive damages. Then, while disputing various rulings of the district court on appeal, Biomet chose not to contest the amount of punitive damages. Because Biomet failed to raise this issue, clearly implicated in the initial decision of the district court, our mandate in Tronzo I acted to prevent Biomet from raising this issue on remand or in any future proceedings in this litigation. See Engel, 166 F.3d at 1383, 49 USPQ2d at 1621. Finally, while Biomet did not initially challenge the amount of punitive damages on constitutional grounds, it could have done so. The unconstitutionality of a large punitive damages award is not predicated on any specific ratio of punitive damages to compensatory damages. Rather, it is judged according to the three guideposts outlined by the Supreme Court in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S.Ct. 1589, 134 L.Ed.2d 809, namely, the reprehensibility of the conduct, the ratio of punitive damages to actual harm inflicted on the plaintiff, and the comparison of punitive damages to the civil or criminal penalties imposed for comparable conduct. Id. at 574-584, 116 S.Ct. 1589. Applying these guideposts, Biomet could have raised a constitutional challenge in Tronzo I if it considered the punitive damages, which the jury awarded based on its finding of wanton or willful conduct, to be excessive. Biomet could have asserted that, if the compensatory damages award is lowered, constitutional requirements mandate that the punitive award be commensurately adjusted; see BMW, 517 U.S. 559, 116 S.Ct. 1589. Biomet did not make any such challenge. Thus, we conclude that Biomet’s belated attack on the punitive damages award was foreclosed" } ]

[ { "docid": "1183757", "title": "", "text": "Income” line on those exhibits. The increased payments to KPERS also substantially change the net cash flow, which is the figure the unsecured creditors would look to for payment through distributions to them as new limited partners. In addition, the net-operating-income-to-debt-service ratio falls below 1.15 in several of the early plan years. B. Discussion and Conclusions About Feasibility The debtor’s plan is not feasible because, as presently set out in the exhibits, the cash flow is insufficient to make all the required payments. Since the debtor’s income projections were more conservative than either side’s appraiser used to determine the value of the Mart and there is not yet a final bid for the general partner share of the post-confirmation debtor, the Court cannot say that the debtor is unable to reorganize but only that the present plan cannot be confirmed. VII. ABSOLUTE PRIORITY A Additional Facts About Absolute Priority KPERS contends that the debtor’s plan violates the absolute priority rule as inter preted by this Court in In re Drimmel, 108 B.R. 284 (Bankr.D.Kan.1989), aff'd 135 B.R. 410 (D.Kan.1991), aff'd sub nom. Unruh v. Rushville State Bank, 987 F.2d 1506 (10th Cir.1993). Under the plan, the former partners’ shares would be cancelled, and new partner shares would be created. The new limited partner shares would be divided pro rata among the unsecured creditors. KPERS is said to be entitled to 60% of the limited partner shares, but after the plan was filed, the Court determined that the amount of KPERS’ postpetition payment of prepetition taxes should be added to its claim, so KPERS’ share would now be about 62%. The remaining limited partner shares would go to the related and possible-insider entities who loaned the debtor over $12,000,000 during a six-year period before the bankruptcy filing, subject to their agreement to direct their distributions to the trade creditors until they are paid in full. The limited partner shares comprise 75% of the new partnership. The remaining 25% would be sold to a new general partner through an auction process. The process for selling the general partner share included two significant" } ]

[ { "docid": "12485278", "title": "", "text": "9 B.R. 854 (Bankr.N.D.Ill.1981), the debtor proposed to extend a two-year loan to over twenty years. The court held that the “debt- or’s proposal to extend a two-year loan over twenty years must equitably and fairly provide the bank with adequate protection that is completely compensatory.” In re Benson, 9 B.R., at 858. The court stated that the “adequate protection need not be geared to whether the arrangement is profitable for the creditor, merely whether it [the bank] is getting the value of its collateral.” In re Benson, 9 B.R., at 858. The plan was confirmed because the value of the security greatly exceeded the Bank’s claim, the value of the security was not depreciating and adequate protection existed if the bank was paid over the 20 year period at interest rates which would make the bank whole. In re Benson, 9 B.R., at 858. In In re Mulberry Agric. Enters., Inc., 113 B.R. 30 (D.Kan.1990), the court approved a thirty year repayment finding it to be fair and equitable. The court held that the economic prerequisites of § 1129(b)(2)(A)(i) through (iii) were met “because the plan provided for retention of liens and payment to the ... [creditors], including deferred cash payments totaling the allowed amount of their claims having a value, as of the effective date of the plan, of the value of their interest in the property.” In re Mulberry Agric. Enter., Inc., 113 B.R., at 32. The creditors objected that the plan was not fair and equitable because the payment of their claims would not be received in a reasonable amount of time. In holding that the plan was fair and equitable, the court considered “the entire plan in the context of the rights of the creditors under state law and the particular facts and circumstances” of the case. In re Mulberry Agric. Enter., Inc., 113 B.R., at 32 (citing In re D & F Construction Inc., 865 F.2d 673, 675 (5th Cir.1989)). The Mulberry Agric. court also reviewed other cases which have confirmed plans over the objection of creditors if the requirements of § 1129 are" }, { "docid": "23328649", "title": "", "text": "on a twenty year amortization) makes the plan unfair. It is clear that, even if a plan satisfies the technical requirements enunciated in § 1129(b)(2) by providing a creditor with an appropriate interest rate, the plan is not necessarily fair and equitable. Section 1129(b)(2) merely states the minimum requirements of a fair and equitable plan. See Matter of Sandy Ridge Devel. Corp., 881 F.2d 1346, 1352 (5th Cir.), reh'g denied, 889 F.2d 663 (1989); Matter of D & F Constr., Inc., 865 F.2d 673, 675 (5th Cir.1989); Miami Center Assocs., 144 B.R. at 940; Kenneth Klee, Cramdown II, 64 Am.Bankr.L.J. 229, 230 (1990). See also 11 U.S.C. § 102(3) (defining the term \"includes” as not limiting). Rather, this court must consider the plan \"in the context of the rights of the creditors under state law and the particular facts and circumstances” of the case. D & F Constr., 865 F.2d at 675. It has been consistently held that the fair and equitable requirement does not prohibit long term payouts. See, e.g., In re Manion, 127 B.R. 887, 890 (Bankr.N.D.Fla.1991); In re White, 36 B.R. 199, 203 (Bankr.D.Kan.1983). To be fair and equitable, the proposed stretchout must simply be reasonable. Manion, 127 B.R. at 890. In fact, lengthy stretch out periods for real estate have received judicial approval. See In re James Wilson Assocs., 965 F.2d 160 (7th Cir.1992) (25 year amortization, 7 year balloon); In re Mulberry Agric. Enter., Inc., 113 B.R. 30 (Bankr.D.Kan.1990) (30 years); In re Mulnix, 54 B.R. 481 (Bankr.N.D.Iowa 1985) (26 years). But see Miami Center Assocs., 144 B.R. 937 (rejecting 30 year amortization, 10 year balloon on hotel loan). In this case, the Debtor's proposed twenty year amortization with a ten year balloon is not unreasonable. The fact that the original EquiVest loan to the Debtor was for a term of five years is not dispositive, or even persuasive. As long as the feasibility of a plan can be shown and the creditor is properly compensated and protected for the use of its money via an appropriate interest rate, it is not improper for a" }, { "docid": "5539775", "title": "", "text": "now argues that because the loan matured prior to Debtor’s Chapter 11 filing, the ten year repayment term at 8% is unfair and inequitable. Relying on In re Mulnix, 54 B.R. 481 (Bankr.N.D.Iowa 1985), the bankruptcy court determined that a repayment period of ten years was not excessive considering that “such loans are given for periods exceeding ten years.” (DN 255 ¶ 3(a)) MONY asserts that the court’s reliance on Mulnix was in error as that case concerned a dissolution decree. In Mulnix, the dissolution decree required that the husband pay his former wife $120,000 within 18 months. Id., at 482-483. After defaulting on this obligation, the husband declared bankruptcy. The ex-wife unsuccessfully attempted to argue that since she was not a creditor in the true sense of the word, the debtor/ex-husband could not extend the term of her 18-month obligation to a twenty year loan. Id. at 483. While MONY is correct that Mulnix concerned whether an ex-spouse with a judgment hen could be treated as a creditor within the meaning of the Code, that decision also provided enlightening discussion on whether extending a note by Yt% years was fair and reasonable. The Mulnix court found persuasive that such a payout over 20 years was not excessive or unreasonable when the collateral is real estate. Id., at 484. Mulnix relied on two decisions where courts confirmed plans over the objection of a secured creditors. See In the Matter of Naugle’s Nursery, Inc., 37 B.R. 574 (Bankr.S.D.Fla.1984) (confirmed a plan despite original notes which were to be paid over three to seven years were extended to fourteen years); In re Benson, 9 B.R. 854 (Bankr.N.D.Ill.1981) (court confirmed plan which extended a note payable in two years to twenty years). Other courts have also found similar extensions fair and equitable where the secured creditor has been given the “indubitable equivalent” of its secured claim. For example, In the Matter of James Wilson Associates, 965 F.2d 160 (7th Cir.1992) allowed a creditor’s loan extended seven years at a rate fixed by the court because the adequate security and the interest rate compensated" }, { "docid": "509615", "title": "", "text": "minimal and therefore does not consider the existence of the State Court Litigation to be a major factor in determining an appropriate market rate of interest. Weighing all of the evidence presented, the Court finds that either a floating interest rate of 325 basis points over the 90-day LIBOR or a fixed rate of 4% over the five-year Treasury Note would be appropriate. The Court will allow the Debtor to decide whether to accept the fixed rate or floating rate. The interest rate selected shall be effective from January 20, 2000, the date of the Court’s oral ruling on this matter, b. Appropriate Term In Mr. Wood’s opinion, two mortgage terms would be available. The first option would be for seven years, including (1) a two-year interest only loan and (2) a five-year amortizing term thereafter (the “Seven-Year Option”). The second option would be an amortizing five-year term (the “Five-Year Option”). Both terms are clearly within the range held acceptable by other courts for commercial real estate loans. See In re Briscoe Enters., Ltd., II, 994 F.2d 1160, 1169 (5th Cir.1993) (finding fifteen-year balloon payment fair and equitable); see also In the Matter of James Wilson Assocs., 965 F.2d 160, 172-73 (7th Cir.1992) (affirming bankruptcy court’s order approving nine-year extension); In re Patrician St. Joseph Partners L.P., 169 B.R. 669, 681 (D.Ariz.1994) (affirming bankruptcy court’s order extending fully matured mortgage over a ten-year term); In re Di Maria, 202 B.R. 634, 640 (Bankr.S.D.Fla.1996) (finding that “a ten year payout to the IRS [on its secured claim] is not excessive or unreasonable when the collateral is real estate and the secured creditor is receiving interest to compensate it for the opportunity cost of money and risk of default”). Weighing all the evidence presented, the Court finds that a five-year term is appropriate. c. Appropriate Amortization Period In Mr. Wood’s opinion, the appropriate amortization period would be twenty-five to thirty years. A twenty-five year amortization period is within the range approved by Courts for commercial real estate loans. See Briscoe, 994 F.2d at 1169 (finding thirty-year amortization fair and equitable); see also" }, { "docid": "509616", "title": "", "text": "994 F.2d 1160, 1169 (5th Cir.1993) (finding fifteen-year balloon payment fair and equitable); see also In the Matter of James Wilson Assocs., 965 F.2d 160, 172-73 (7th Cir.1992) (affirming bankruptcy court’s order approving nine-year extension); In re Patrician St. Joseph Partners L.P., 169 B.R. 669, 681 (D.Ariz.1994) (affirming bankruptcy court’s order extending fully matured mortgage over a ten-year term); In re Di Maria, 202 B.R. 634, 640 (Bankr.S.D.Fla.1996) (finding that “a ten year payout to the IRS [on its secured claim] is not excessive or unreasonable when the collateral is real estate and the secured creditor is receiving interest to compensate it for the opportunity cost of money and risk of default”). Weighing all the evidence presented, the Court finds that a five-year term is appropriate. c. Appropriate Amortization Period In Mr. Wood’s opinion, the appropriate amortization period would be twenty-five to thirty years. A twenty-five year amortization period is within the range approved by Courts for commercial real estate loans. See Briscoe, 994 F.2d at 1169 (finding thirty-year amortization fair and equitable); see also James Wilson, 965 F.2d at 172 (affirming bankruptcy court’s order approving twenty-five-year amortization); Patrician St. Joseph, 169 B.R. at 681 (affirming bankruptcy court’s order confirming plan with twenty-five-year amortization). Considering the evidence, the Court finds that a twenty-five-year amortization period for purposes of this restructured real estate mortgage loan is appropriate. 2. Unfair “Shitting of the Risk ” Coolidge’s argument, based on the language of Miami Center that the Plan improperly “shifts” the risk from the Debtor to the secured creditor, ignores the fact that it is fully secured. See In re Miami Center Assocs. Ltd., 144 B.R. 937 (Bankr.S.D.Fla.1992). The Court in Miami Center was faced with a situation markedly different from the one here: According to the debtor’s own projections, the debtor will be required to pay approximately half of Aetna’s total secured claim as a balloon payment ten years in the future. Given the risks associated with hotel loans in general as was testified to by both experts and the fact that the expected increase in value in the hotel will be" }, { "docid": "92666", "title": "", "text": "even agreed on cross examination that an appropriate rate would be 7/4% to 8%%, “after resolving a number of misguided assumptions.” With such testimony, it is not manifest error to conclude that 10% provides a market rate. National argues that the plan is not “fair and equitable” because its fully matured secured claim will not be paid for 15 years. But the term of the repayment is not generally regarded as a “fair and equitable” issue, but rather merely limited by the proponent’s ability to satisfy the “feasibility” requirement of § 1129(a)(ll). When feasibility can be shown and the collateral is not depreciable, such as real estate, numerous cases have approved plans with repayment terms of 15 years or longer. See, e.g., In re Overland Park Merchandise Mart Partnership, L.P., 167 B.R. 647 (Bankr.D.Kan.1994)(25 year fully amortized term); In re River Village Assocs., 161 B.R. 127 (Bankr.E.D.Pa.1993), aff'd, 181 B.R. 795 (E.D.Pa.1995)(15 year term); In re Kellogg Square Partnership, 160 B.R. 343 (Bankr.D.Minn.1993)(20 year term); In re Mulberry Agric. Enter., Inc., 113 B.R. 30 (D.Kan.1990)(30 year plan); In re Benson, 9 B.R. 854 (Bankr.N.D.Ill.1981)(20 year extension óf a two-year note). Nor is there any particular significance to the fact that the loan being extended under the plan was fully due when the bankruptcy was filed. Mutual Life Ins. Co. of New York v. Patrician St. Joseph Partners, L.P. (In re Patrician St. Joseph Partners, L.P.), 169 B.R. 669 (D.Ariz.1994)(ten year term permissible even though bankruptcy was triggered by debtor’s inability to make the balloon payment on a five-year note). Based on the evidence, it was not manifest error to approve a plan with a 15 year repayment term. Finally, National argues that the plan violates the absolute priority rule, and that Judge Mooreman “erred in ruling as a matter of law that the absolute priority rule is not applicable to this case.” But of course he was entirely correct. As the Supreme 'Court noted recently, the absolute priority rule originated in pre-Code, and indeed in pre-Act, law, but the “rule [is] now on the books as [§ 1129] subsection (b)(2)(B)(ii).”" }, { "docid": "18981707", "title": "", "text": "have both taken on full-time factory jobs and have earned enough to save up $33,000 to fund their farming operation. (They were not able to farm in prior years because they did not have the cash necessary to plant a crop.) They have been able to make $1,300 monthly payments to the Bank for the majority of their bankruptcy case, and have paid approximately $75,000 to the Bank since they first filed in 2005 (not including the $25,000 the Bank received on account of the 2008 storm damage). Furthermore, the collateral in this case is real estate. There is no evidence the real estate is depreciating or is in any danger of depreciating. The Bank agrees it is oversecured on all its loans. Finally, based on the Court’s conclusions regarding feasibility of the Debtors’ Plan, the Court finds the proposed duration of payments under the Plan to be reasonable. The Debtors propose to pay the Bank over 12 years, and the FSA over 20 years. Although longer repayment terms may justify an increase in the applicable interest rate, In re American Trailer, 419 B.R. at 440, the Court finds the adjustment proposed by the Debtors of 2.25% above the prime rate adequately adjusts for the risk associated with the Plan and the extended repayment term (discussed below) while providing the Bank with the value of its interest in Debtors’ collateral. Length of Repayment Term on the Bank’s Claim The Bank objects to the Debtors’ proposal to extend the repayment terms of the loans to 12 years. Section 1129 does not specifically prohibit a debtor from altering the original repayment period on a loan. See e.g., In re Mulberry Agr. Enterprises, Inc., 113 B.R. 30, 32-33 (D.Kan. 1990). As quoted by the Mulberry court, Bankruptcy Judge Pusateri stated in In re White, 36 B.R. 199, 203 (Bankr.D.Kan. 1983): The Court believes that § 1129 does not per se prohibit long term payouts. If the mathematical requirements of § 1129(b)(2)(A)(i)(II) are satisfied, if the creditor is adequately protected under the plan, pursuant to the general fair and equitable requirement of § 1129(b)(2)," }, { "docid": "12485280", "title": "", "text": "satisfied. These cases did not take a creditor’s reluctance in making long-term loans into consideration when making a decision as to whether the plan was fair and equitable: The Court believes that § 1129 does not per se prohibit long term payouts. If the mathematical requirements of § 1129(b)(2)(A)(i)(II) are satisfied, if the creditor is adequately protected under the plan, pursuant to the general fair and equitable requirement of § 1129(b)(2), and if the debtors can prove they can make payments over the life of the plan pursuant to § 1129(a)(ll), then the plan is confirmable and can be crammed down on a rejecting class of secured claim holders, regardless of normal lending practices or policies. In re Mulberry Agric. Enter., Inc., 113 B.R., at 33 (quoting In re White, 36 B.R. 199, 203 (Bankr.D.Kan.1983)). The Mulberry Agric. court concluded that “[t]he law appears to support the stretch out of lending terms, despite the original intentions of the lenders, given the satisfaction of other prerequisites which have not been challenged here.” In re Mulberry Agric. Enter., Inc., 113 B.R., at 33. In In re Martin, 66 B.R. 921 (Bankr.D.Mont.1986), the court confirmed a plan which restructured a note and mortgage from 7 to 20 years, over the dissent of the secured creditors. The court concluded that the Code allows mortgage debts to be extended. ‘As one commentary has noted, bankruptcy courts may ‘cram down’ feasible plans of reorganization under the reorganization provisions (e.g. section 1129) of the new Bankruptcy Code, where such plans seek to achieve restructuring of mortgage debts secured by real estate as follows: (1) The term of any mortgage debt may be extended; (2) Payments required by the mortgage debt of either principal or interest may be postponed; and (3) Deferred or reduced payments of principal or interest may be added to the mortgage balance.’ In re Martin, 66 B.R., at 930 (quoting In re Hollanger, 15 B.R. 35, 47 (Bankr.W.D.La.1981)). The Martin court found the restructuring to be reasonable considering the creditor “will retain its lien on the real property as a first mortgage holder and," }, { "docid": "12485277", "title": "", "text": "of the foregoing leads the court to find an adjustment of 90 basis points over the 8.1 percent rate available to Sagewood for that portion of the loan that falls within the 80% loan to value ratio. The blended rate then would be 8.15 percent. The court finds and concludes that the loan to Beal can be restructured to provide Beal with a blended interest rate of 8.15 percent. b. Term of The Loan Sagewood proposes that the full amount of the note, $6,925,885.81, which includes a principal balance of $5,528,827.67, accrued interest of $1,349,408.77, late charges of $47,-598.87 and an escrow deficiency of $0.21 be amortized over 30 years with the debt to become fully due and payable in 22 years. Sagewood argues that it is fair and equitable to extend the time period because the deferred cash payments are equal to the present value of Beal’s claim. Beal objects to the extension of the time period under the note. Section 1129(b)(2)(A) does not prohibit the extension of secured debt. In In re Benson, 9 B.R. 854 (Bankr.N.D.Ill.1981), the debtor proposed to extend a two-year loan to over twenty years. The court held that the “debt- or’s proposal to extend a two-year loan over twenty years must equitably and fairly provide the bank with adequate protection that is completely compensatory.” In re Benson, 9 B.R., at 858. The court stated that the “adequate protection need not be geared to whether the arrangement is profitable for the creditor, merely whether it [the bank] is getting the value of its collateral.” In re Benson, 9 B.R., at 858. The plan was confirmed because the value of the security greatly exceeded the Bank’s claim, the value of the security was not depreciating and adequate protection existed if the bank was paid over the 20 year period at interest rates which would make the bank whole. In re Benson, 9 B.R., at 858. In In re Mulberry Agric. Enters., Inc., 113 B.R. 30 (D.Kan.1990), the court approved a thirty year repayment finding it to be fair and equitable. The court held that the" }, { "docid": "92671", "title": "", "text": "apply to secured claims, simply because the payment term to secured creditors is longer than the payment term to unsecured creditors. Conclusion Based on the foregoing findings and conclusions, National’s Motion for New Trial or Amended Findings, Conclusions and Judgment should be granted only in part — the findings and conclusions must be amended to provide that the amount of National’s secured claim is the $300,000 value of the real property plus the amount of cash collateral on hand in the Debtor’s bank account as of the date of confirmation. In all other respects, the Motion must be denied. . This holding adopts what one court called the \"addition” approach, because the amount of the collected rents are added to the value of the real property to determine the amount of the undersecured claim. See In re Union Meeting Partners, 178 B.R. 664, 674-75 (Bankr.E.D.Pa.1995). This approach means that the amount of the undersecured claim may grow during the pendency of a case. See In re Landing Assocs., Ltd., 122 B.R. 288 (Bankr.W.D.Tex.1990).‘ There is another line of authority, called the \"subtraction” cases, where collected rents are regarded as an integral part of the real property collateral and therefore are subtracted from the underse-cured claim to the extent they are paid to the creditor during the pendency of the case. See, e.g., In re Barkley 3A Investors, Ltd., 175 B.R. 755 (Bankr.D.Kan.1994). But in Am-banc the Ninth Circuit clearly adopted the \"addition\" approach, as has the only other circuit to address the issue, Financial Sec., Assurance Inc. v. T-H New Orleans, Ltd. Partnership (In re T-H New Orleans Ltd. Partnership), 116 F.3d 790 (5th Cir.1997), and as had both the Arizona District Court and this Court. Mutual Life Ins. Co. of New York v. Patrician St. Joseph Partners, L.P. (In re Patrician St. Joseph Partners, L.P.), 169 B.R. 669 (D.Ariz.1994); In re Paradise Springs Associates, 165 B.R. 913 (Bankr.D.Ariz.1993). . Since National is undersecured, it is not entitled to interest under § 506(b). Wabash, supra. Consequently the payments it received must be applied to principal, rather than to interest. Thus" }, { "docid": "23328650", "title": "", "text": "B.R. 887, 890 (Bankr.N.D.Fla.1991); In re White, 36 B.R. 199, 203 (Bankr.D.Kan.1983). To be fair and equitable, the proposed stretchout must simply be reasonable. Manion, 127 B.R. at 890. In fact, lengthy stretch out periods for real estate have received judicial approval. See In re James Wilson Assocs., 965 F.2d 160 (7th Cir.1992) (25 year amortization, 7 year balloon); In re Mulberry Agric. Enter., Inc., 113 B.R. 30 (Bankr.D.Kan.1990) (30 years); In re Mulnix, 54 B.R. 481 (Bankr.N.D.Iowa 1985) (26 years). But see Miami Center Assocs., 144 B.R. 937 (rejecting 30 year amortization, 10 year balloon on hotel loan). In this case, the Debtor's proposed twenty year amortization with a ten year balloon is not unreasonable. The fact that the original EquiVest loan to the Debtor was for a term of five years is not dispositive, or even persuasive. As long as the feasibility of a plan can be shown and the creditor is properly compensated and protected for the use of its money via an appropriate interest rate, it is not improper for a plan to stretch out payments, even if the loan was originally intended to be a short term loan. See In re Holtanger, 15 B.R. 35, 47 (Bankr.W.D.La.1981) (seven year extension in farm reorganization); In re Benson, 9 B.R. 854, 858 (Bankr.N.D.Ill.1981) (20 year extension of 2 year note). . The facts of the instant case confirm the fact that Chapter 11 debtors are at a serious disadvantage in negotiating financing. In the spring of 1992, Riverside Capital offered to lend the Debtor the money the Debtor claimed it needed to take-out EquiVest, up to 75% of the value of the Cypress Creek property. The terms of Riverside's proposal were exorbitant. It sought, for a three year loan, an interest rate of 15%, plus equity participation of 10%-20%, and a $34,000 consulting fee. . A basis point is simply one hundredth of one percent. . Section 1129(b)(2)(A)(i)(II) requires the appropriate interest rate to be measured from the effective date of the plan, which the Debtor’s plan provides will be ten days following confirmation of the plan." }, { "docid": "509619", "title": "", "text": "interest rate structure, and balloon terms contemplated by this plan. In the other case cited by Coolidge, In re Monarch Beach Venture, Ltd., 166 B.R. 428, 430 (C.D.Cal.1993), as in Miami Center, the court found that there was an unacceptable risk on the lender in that the Debtor’s plan was contingent on the Debt- or’s successfully converting rental apartments to condominium units. Here, Coolidge, a fully secured creditor with an approximate $3.0 million equity cushion above its $5.4 million first mortgage debt (stipulated to by the parties for purposes of the confirmation hearing only), is hardly exposed to unacceptable risk. On one hand, if the Debtor fails to make the payments under the Plan, then Coolidge will be able to foreclose on the property. On the other hand, if the Debtor does make the payments under the Plan, then Coolidge will have earned a market rate of interest throughout the term of the loan. The cases relied on by Coolidge all involved properties having no equity cushion, which in fact does “shift” the entire risk of loss to the lender for the benefit of equity. Such, however, is not the case here. Coolidge also cites In re Immenhausen Corp., 172 B.R. 343 (Bankr.M.D.Fla.1994), in which the debtor proposed a plan under which the “remaining cash flow would only be sufficient to make interest only payments to the Bank at 3.32% with no amortization of principal.” Id. at 348. Here, the Debtor is proposing to pay Coolidge a market rate of interest, not a negative amortization. The treatment afforded Coolidge here is more conservative than the treatment afforded Mutual Life Insurance Company of New York (“MONY”) in Patrician St. Joseph, wherein the Court confirmed a plan that imposed a ten-year repayment term and an 8% interest rate based upon a twenty-five-year amortization. See In re Patrician St. Joseph Partners, L.P., 169 B.R. 669, 681 (D.Ariz.1994). Because of the substantial equity cushion, the excellent real estate market for shopping centers, and the Debtor’s proven ability to generate substantial cash flows, the Court finds the risk imposed on Coolidge under the Plan to" }, { "docid": "509622", "title": "", "text": "has held that simple technical compliance with one of the three options in 1129(b)(2)(A) may not necessarily satisfy the fair and equitable requirement, it has not transformed the “or” in 1129(b)(2)(A) into an “and.” As we hold that the plan satisfies 1129(b)(2)(A)(i), we need not attempt to decipher the meaning of “indubitable equivalent.” (internal citations omitted). The “indubitable equitable” requirement and case law decided thereunder are not applicable here. Even if the “indubitable equivalent” requirement were applicable, by retaining its lien and receiving deferred cash payments with a present value equal to the full amount of its claim, the Court finds that Coolidge is receiving the “indubitable equivalent” of its claim. 4. Matured Mortgage May Be Extended Under § 1129(b)(2)(A). The argument that a fully matured note (the Debtor disputes that the note is fully matured in the State Court Litigation) cannot be extended is contrary to the language of § 1129(b)(2)(A), which contains no such limitation, and case law decided thereunder. See In re Patrician St. Joseph Partners, L.P., 169 B.R. 669, 681 (D.Ariz.1994) (allowing mortgage fully matured on July 1, 1992, over two months before the Debtor’s filing on August 4, 1992, to be extended over a ten-year term); see also In the Matter of Naugle’s Nursery, Inc., 37 B.R. 574 (Bankr.S.D.Fla.1984) (confirming plan that stretched three, five and seven-year notes to fourteen years). 5. Restructured Loan Documents Mr. O’Boyle testified that the prepetition restrictions on the Debtor’s ability to fund capital improvements hampered its operations. For example, Mr. O’Boyle testified that First Union refused to allow the Debtor to use fmids to repair roofs or to perform environmental remediation of Space Q. Mr. O’Boyle also testified that First Union’s right to approve the Debt- or’s new leases also reduced the Debtor’s operating revenues. For example, Mr. O’Boyle testified that the Hancock Fabric lease negotiations were held up because First Union refused to sign a subordination and non-disturbance agreement. Mr. O’Boyle testified that were the overly-restrictive terms of the loan to remain in place, it was his belief that Coolidge would try to obtain the Midland Plaza through" }, { "docid": "92672", "title": "", "text": "another line of authority, called the \"subtraction” cases, where collected rents are regarded as an integral part of the real property collateral and therefore are subtracted from the underse-cured claim to the extent they are paid to the creditor during the pendency of the case. See, e.g., In re Barkley 3A Investors, Ltd., 175 B.R. 755 (Bankr.D.Kan.1994). But in Am-banc the Ninth Circuit clearly adopted the \"addition\" approach, as has the only other circuit to address the issue, Financial Sec., Assurance Inc. v. T-H New Orleans, Ltd. Partnership (In re T-H New Orleans Ltd. Partnership), 116 F.3d 790 (5th Cir.1997), and as had both the Arizona District Court and this Court. Mutual Life Ins. Co. of New York v. Patrician St. Joseph Partners, L.P. (In re Patrician St. Joseph Partners, L.P.), 169 B.R. 669 (D.Ariz.1994); In re Paradise Springs Associates, 165 B.R. 913 (Bankr.D.Ariz.1993). . Since National is undersecured, it is not entitled to interest under § 506(b). Wabash, supra. Consequently the payments it received must be applied to principal, rather than to interest. Thus the $90,100 in rents collected and paid over must be deducted from the principal amount of its claim that would otherwise total the value of the property ($300,-000), the rents collected and paid over ($91,-000), and the rents collected and not paid over, i.e., the approximate $180,000 remaining on hand at the time of confirmation. Calculated strictly according to the Ambanc formula, National's secured claim would be $570,000, but Debtor is credited for the $90,-100 in rents already paid to National, leaving a secured claim of approximately $480,000 (assuming the accuracy of the estimate of $180,000 in cash collateral on hand at confirmation). . Monarch Beach relied on similar conclusions stated in In re Miami Center Assocs., Ltd., 144 B.R. 937 (Bankr.S.D.Fla.1992) and In re Lakeside Global II, Ltd., 116 B.R. 499 (Bankr.S.D.Tex.1989). These authorities have been discredited. See, e.g., Corestates Bank, N.A. v. United Chem. Tech., Inc., 202 B.R. 33, 54 (E.D.Pa.1996)(rejecting Monarch); Mutual Life Ins. Co. Of New York v. Patrician St. Joseph Partners, L.P. (In re Patrician St. Joseph Partners, L.P.), 169" }, { "docid": "18981710", "title": "", "text": "other cases in application of this principle to a Chapter 12 case); In re Koch, 131 B.R. 128, 131 (Bankr.N.D.Iowa 1991) (Chapter 12 case). “Courts also look at the ‘life expectancy’ of the collateral, the risk of default, and the risk that the collateral will lose value.” In re Richards, 2004 WL 764526, *4 (Bankr.N.D.Iowa 2004) (citations omitted). “A payout over 20 years is not excessive or unreasonable when the collateral is real estate.” In re Mulnix, 54 B.R. at 484. See also In re SM 104 Ltd., 160 B.R. 202, 231 (Bankr.S.D.Fla.1993) (collecting cases). Numerous courts have likewise allowed debtors to stretch out repayment periods. See e.g., In re Mulberry Agr. Enterprises, Inc., 113 B.R. at 32 (citing In re Billman, 93 B.R. 657, 660 (Bankr.S.D.Iowa 1988) (seven-year note stretched to 25 years with a balloon payment after 15 years noting that debtors are often allowed to pay claims secured by real estate over a 30-year period); In re Snider Farms, Inc., 83 B.R. 977, 999 (Bankr.N.D.Ind.1988) (loan secured by farmland stretched to thirty years not unreasonable); In re O’Farrell, 74 B.R. 421, 423 (Bankr.N.D.Fla.1987) (thirty years is a reasonable period for a loan secured by real estate); In re Martin, 66 B.R. 921 (Bankr.D.Mont.1986) (stretchout of note and mortgage from seven to twenty years confirmed)). In this case, the Debtors have provided for the Bank to retain its lien, and have provided for the payment of a fair interest rate so that the Bank will receive the present value of its claim. As discussed earlier, the upward adjustment of 2.25% to the prime rate is sufficient to compensate the Bank, in part, for the lengthened repayment term given that the Debtors are likely to be able to make payments under their Plan, the Bank is oversecured, and the collateral is improved farmland unlikely to depreciate in value. Although Mr. Montgomery testified that the Bank’s practice is to hold fixed rate loans of terms no longer than 5 years, the documents filed together with the Bank’s proof of claim show that the Bank does indeed make loans with terms" }, { "docid": "92665", "title": "", "text": "a willing third party buyer would pay. Moreover, this approach is further supported by the Supreme Court’s most recent pronouncement on the subject: “the best way to determine value is exposure to a market.” Bank of America Nat’l Trust & Sav. Ass’n v. 203 N. LaSalle St. Partnership, 526 U.S. 434, 457, 119 S.Ct. 1411, 1423, 143 L.Ed.2d 607, 625 (1999). Here Judge Mooreman relied on evidence of how the market would value the contaminated property, and in doing so did not commit any manifest error of fact or law. The Absolute Priority Rule Does Not Apply to Secured Claims National argues that, for various reasons, the plan does not satisfy the “fair and equitable” requirement of § 1129(b). National complains that the 10% interest rate applied to the deferred payment of its $300,000 secured claim is not a market rate of interest and therefore fails to provide the present value required by § 1129(b)(2)(A)(i)(II). But Debtor’s witness testified the appropriate market rate would be in a range of 7)4% to 9/é%, and National’s witness even agreed on cross examination that an appropriate rate would be 7/4% to 8%%, “after resolving a number of misguided assumptions.” With such testimony, it is not manifest error to conclude that 10% provides a market rate. National argues that the plan is not “fair and equitable” because its fully matured secured claim will not be paid for 15 years. But the term of the repayment is not generally regarded as a “fair and equitable” issue, but rather merely limited by the proponent’s ability to satisfy the “feasibility” requirement of § 1129(a)(ll). When feasibility can be shown and the collateral is not depreciable, such as real estate, numerous cases have approved plans with repayment terms of 15 years or longer. See, e.g., In re Overland Park Merchandise Mart Partnership, L.P., 167 B.R. 647 (Bankr.D.Kan.1994)(25 year fully amortized term); In re River Village Assocs., 161 B.R. 127 (Bankr.E.D.Pa.1993), aff'd, 181 B.R. 795 (E.D.Pa.1995)(15 year term); In re Kellogg Square Partnership, 160 B.R. 343 (Bankr.D.Minn.1993)(20 year term); In re Mulberry Agric. Enter., Inc., 113 B.R. 30 (D.Kan.1990)(30" }, { "docid": "509620", "title": "", "text": "of loss to the lender for the benefit of equity. Such, however, is not the case here. Coolidge also cites In re Immenhausen Corp., 172 B.R. 343 (Bankr.M.D.Fla.1994), in which the debtor proposed a plan under which the “remaining cash flow would only be sufficient to make interest only payments to the Bank at 3.32% with no amortization of principal.” Id. at 348. Here, the Debtor is proposing to pay Coolidge a market rate of interest, not a negative amortization. The treatment afforded Coolidge here is more conservative than the treatment afforded Mutual Life Insurance Company of New York (“MONY”) in Patrician St. Joseph, wherein the Court confirmed a plan that imposed a ten-year repayment term and an 8% interest rate based upon a twenty-five-year amortization. See In re Patrician St. Joseph Partners, L.P., 169 B.R. 669, 681 (D.Ariz.1994). Because of the substantial equity cushion, the excellent real estate market for shopping centers, and the Debtor’s proven ability to generate substantial cash flows, the Court finds the risk imposed on Coolidge under the Plan to be acceptable and in no way unfair or inequitable. Further, the interest rates the Court found to be acceptable take into consideration the risks associated with this loan. Therefore, Coolidge is adequately compensated for the level of risk involved, satisfying the requirements of § 1129(b). 3. Indubitable Equivalent Under 1129(b)(2) (A)(iii) Coolidge argues that it is not receiving the “indubitable equivalent” of its claim. In a technical sense, Coolidge may be right — the Plan does not propose to provide it with the “indubitable equivalent” under clause (iii) of subparagraph (A) of § 1129(b)(2). Similarly, the Plan does not propose to provide the protections of clause (ii) of subparagraph (A) (liens to attach to proceeds if the plan contemplates a sale of property subject to the liens). Rather, the Debtor seeks confirmation under clause (i) of subparagraph (A). A debtor only needs to satisfy one of the three standards set forth in paragraph § 1129(b)(2)(A). See In the Matter of Briscoe Enters., Ltd., II, 994 F.2d 1160, 1168 (5th Cir.1993) stating that: While this Court" }, { "docid": "18981709", "title": "", "text": "and if the debtors can prove they can make payments over the life of the plan pursuant to § 1129(a)(ll), then the plan is confirma-ble and can be crammed down on a rejecting class of secured claim holders, regardless of normal lending practices or policies. Id. at 33. See also In re Mulnix, 54 B.R. 481, 484 (Bankr.Iowa 1985) (“The legislative history to Section 1129(b) states that, to be fair and equitable, debtor’s plan has to satisfy only one of the three conditions as the plan relates to a secured creditor.... Here, debtor has proposed to allow creditor to retain her lien and to be paid present value. Thus, the minimum statutory test has been met.”) (citations omitted). Nevertheless, in determining whether a stretched out repayment period is fair and equitable, courts often look to the applicable markets, when at all possible, to determine what is reasonable, and should consider the preexisting contract length and the customary length of repayment for similar loans. See, e.g., In re Torelli, 338 B.R. 390, 397 (Bankr.E.D.Ark. 2006) (citing other cases in application of this principle to a Chapter 12 case); In re Koch, 131 B.R. 128, 131 (Bankr.N.D.Iowa 1991) (Chapter 12 case). “Courts also look at the ‘life expectancy’ of the collateral, the risk of default, and the risk that the collateral will lose value.” In re Richards, 2004 WL 764526, *4 (Bankr.N.D.Iowa 2004) (citations omitted). “A payout over 20 years is not excessive or unreasonable when the collateral is real estate.” In re Mulnix, 54 B.R. at 484. See also In re SM 104 Ltd., 160 B.R. 202, 231 (Bankr.S.D.Fla.1993) (collecting cases). Numerous courts have likewise allowed debtors to stretch out repayment periods. See e.g., In re Mulberry Agr. Enterprises, Inc., 113 B.R. at 32 (citing In re Billman, 93 B.R. 657, 660 (Bankr.S.D.Iowa 1988) (seven-year note stretched to 25 years with a balloon payment after 15 years noting that debtors are often allowed to pay claims secured by real estate over a 30-year period); In re Snider Farms, Inc., 83 B.R. 977, 999 (Bankr.N.D.Ind.1988) (loan secured by farmland stretched to thirty" }, { "docid": "18981708", "title": "", "text": "applicable interest rate, In re American Trailer, 419 B.R. at 440, the Court finds the adjustment proposed by the Debtors of 2.25% above the prime rate adequately adjusts for the risk associated with the Plan and the extended repayment term (discussed below) while providing the Bank with the value of its interest in Debtors’ collateral. Length of Repayment Term on the Bank’s Claim The Bank objects to the Debtors’ proposal to extend the repayment terms of the loans to 12 years. Section 1129 does not specifically prohibit a debtor from altering the original repayment period on a loan. See e.g., In re Mulberry Agr. Enterprises, Inc., 113 B.R. 30, 32-33 (D.Kan. 1990). As quoted by the Mulberry court, Bankruptcy Judge Pusateri stated in In re White, 36 B.R. 199, 203 (Bankr.D.Kan. 1983): The Court believes that § 1129 does not per se prohibit long term payouts. If the mathematical requirements of § 1129(b)(2)(A)(i)(II) are satisfied, if the creditor is adequately protected under the plan, pursuant to the general fair and equitable requirement of § 1129(b)(2), and if the debtors can prove they can make payments over the life of the plan pursuant to § 1129(a)(ll), then the plan is confirma-ble and can be crammed down on a rejecting class of secured claim holders, regardless of normal lending practices or policies. Id. at 33. See also In re Mulnix, 54 B.R. 481, 484 (Bankr.Iowa 1985) (“The legislative history to Section 1129(b) states that, to be fair and equitable, debtor’s plan has to satisfy only one of the three conditions as the plan relates to a secured creditor.... Here, debtor has proposed to allow creditor to retain her lien and to be paid present value. Thus, the minimum statutory test has been met.”) (citations omitted). Nevertheless, in determining whether a stretched out repayment period is fair and equitable, courts often look to the applicable markets, when at all possible, to determine what is reasonable, and should consider the preexisting contract length and the customary length of repayment for similar loans. See, e.g., In re Torelli, 338 B.R. 390, 397 (Bankr.E.D.Ark. 2006) (citing" }, { "docid": "92667", "title": "", "text": "year plan); In re Benson, 9 B.R. 854 (Bankr.N.D.Ill.1981)(20 year extension óf a two-year note). Nor is there any particular significance to the fact that the loan being extended under the plan was fully due when the bankruptcy was filed. Mutual Life Ins. Co. of New York v. Patrician St. Joseph Partners, L.P. (In re Patrician St. Joseph Partners, L.P.), 169 B.R. 669 (D.Ariz.1994)(ten year term permissible even though bankruptcy was triggered by debtor’s inability to make the balloon payment on a five-year note). Based on the evidence, it was not manifest error to approve a plan with a 15 year repayment term. Finally, National argues that the plan violates the absolute priority rule, and that Judge Mooreman “erred in ruling as a matter of law that the absolute priority rule is not applicable to this case.” But of course he was entirely correct. As the Supreme 'Court noted recently, the absolute priority rule originated in pre-Code, and indeed in pre-Act, law, but the “rule [is] now on the books as [§ 1129] subsection (b)(2)(B)(ii).” Bank of America Nat’l Trust & Sav. Ass’n v. 203 N. LaSalle St. Partnership, 526 U.S. 434, 449, 119 S.Ct. 1411, 1419, 143 L.Ed.2d 607, 620 (1999). But that Code provision applies only to “a class of unsecured claims,” and defines what is necessary to satisfy the “fair and equitable” requirement of § 1129(b)(1), which applies only to a “class of claims or interests that is impaired under, and has not accepted, the plan.” In this case there was only one class of unsecured claims, and it accepted the plan, so neither § 1129(b)(1) nor § 1129(b)(2)(B) came into play. Put another way, § 1129(b) is merely an alternative to satisfying § 1129(a)(8), which was satisfied for the unsecured class by its acceptance. National argues that even as to secured claims, the absolute priority rule means that “the dissenting secured creditor must ordinarily be paid in full before any junior class may share under the plan,” quoting from Aetna Realty Investors, Inc. v. Monarch Beach Venture, Ltd. (In re Monarch Beach Venture, Ltd.), 166 B.R." } ]

[ { "docid": "6069296", "title": "", "text": "shall appoint the most adequate plaintiff as lead plaintiff for the consolidated actions in accordance with this paragraph. 15 U.S.C. § 78u-4(a)(3)(B)(ii). In eschewing the “first come, first serve” determination of the lead plaintiff in favor of the most adequate plaintiff, the PSLRA \" 'ensurefs] that institutional plaintiffs with expertise in the securities market and real financial interests in the integrity of the market would control the litigation, not lawyers.’” See Milestone I, 183 F.R.D. at 412 (quoting In re Donnkenny Inc. Sec. Litig., 171 F.R.D. 156, 157 (S.D.N.Y.1997) (citing Conference Report at 730-34)). The selection of the most adequate plaintiff under the PSLRA is governed by a rebuttable presumption: [T]he court shall adopt a presumption that the most adequate plaintiff in any private action arising under this chapter is the person or group of persons that— (aa) has either filed the complaint or made a motion in response to a notice under subpar-agraph (A)(i); (bb) in the determination of the court, has the largest financial interest in the relief sought by the class; and (cc) otherwise satisfies the requirement of Rule 23 of the Federal Rules of Civil Procedure. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). This presumption of adequacy may be rebutted only upon proof by a member of the purported plaintiff class that the presumptively most adequate plaintiff— (aa) will not fairly and adequately protect the interest of the class; or (bb) is subject to unique defenses that render such plaintiff incapable of adequately representing the class. 15 U.S.C. § 78u — 4(a)(3)(B)(iii)(II). As discussed in Milestone I, it appeared the Gintel Group was presumptively the most adequate plaintiff, having purchased 1,412,200 shares of Milestone common stock and having suffered losses of $11,-789,419.94. It also appeared the Gintel Group preliminarily met the \"adequacy” and \"typicality” requirements of Fed.R.Civ.P. 23(a). The adequacy of the Gintel Group was not rebutted. It appeared, moreover, fourteen of the sixteen class action plaintiffs supported the Lead Plaintiff Motion. See Milestone I, 183 F.R.D. at 417. . Schoengold and Cohen, Milstein withdrew the request for the appointment of Liaison Counsel, as originally proposed in the Proposed" } ]

[ { "docid": "13909201", "title": "", "text": "be restated typically and quickly spawn a spate of securities fraud lawsuits. BearingPoint’s April 20th announcement was no exception. Within weeks several such lawsuits were filed in this district against BearingPoint and its officers. Thereafter, and pursuant to the Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. § 78u-4, and Rule 42, Fed.R.Civ.P., the various lawsuits were consolidated. See In re BearingPoint Sec. Litig., Civil Action No. I:05cv454 (June 27, 2005). After consolidation, pursuant to 15 U.S.C. § 78u-4(a)(3)(B), Matrix was selected as lead plaintiff owing, in part, to Matrix’s sophistication as an investor and its substantial financial interest at stake in the litigation. See In re BearingPoint Sec. Litig., Civil Action No. 1:05cv454 (July 26, 2005). This Order also approved the appointment of Gold Bennett Cera & Sidener LLP (GBCS) as lead plaintiffs counsel. Id. These decisions were confirmed in an Order denying a motion for reconsideration of the appointment. See In re BearingPoint Sec. Litig., Civil Action No. 1:05cv454 (August 15, 2005). Matrix filed its Consolidated Complaint on October 7, 2005 alleging various violations of the securities laws. Specifically, Matrix alleges that defendants knowingly or recklessly misrepresented BearingPoint’s financial condition by overstating its earnings and assets by hundreds of millions of dollars, although the precise size of the overstatement awaits BearingPoint’s restated financials. See supra note 2. Accordingly, Matrix seeks certification of the following class: All persons or entities who purchased or otherwise acquired the securities of BearingPoint between August 14, 2003 and April 20, 2005 and who were damaged thereby. Matrix’s motion for class certification has been fully briefed and argued and is now ripe for disposition. II. The principles governing the certification of plaintiff classes pursuant to Rule 23 are well-established. First, the party moving for class certification bears the burden of demonstrating that its proposed class meets the requirements found in Rule 23 Fed.R.Civ.P. Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 614, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997). Next, the statute instructs courts to determine whether or not to certify a class at “an early practicable time” and provides a two-step" }, { "docid": "16468875", "title": "", "text": "2622, 86 L.Ed.2d 215 (1985) (citation omitted). In adopting the Reform Act, Congress affirmed that “[p]rivate securities litigation is an indispensable tool with which defrauded investors can recover their losses.” It further stated that private lawsuits “promote public and global confidence in our capital markets and help to deter wrongdoing and to guarantee that corporate officers, auditors, directors, lawyers and others properly perform their jobs.” Joint Explanatory Statement of the Committee of Conference, Conference Report on Securities Litigation Reform, H.R. Conf. Rep. No. 104-369, at 31 (Nov. 28, 1995) (“Conf.Rep.”). Congress sought through the Reform Act’s lead plaintiff provisions, 15 U.S.C. § 78u-4(a), to ensure more effective representation of investors’ interests in private securities class actions by transferring control of the actions from lawyers to investors. Conf. Rep. 32-35. The Act establishes specific procedures and criteria for the appointment of lead plaintiff; it further provides that the lead plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I)-(II) & (v). Other provisions of the Reform Act, including 15 U.S.C. § 78o(c)(8), target practices surrounding private securities litigation that Congress regarded as abusive. Among these is the use of so-called professional plaintiffs by law firms. IsBased upon statutory language, purpose, and history, the Commission believes that 15 U.S.C. § 78o(c)(8) prohibits a certain practice: brokers, dealers, and associated persons recruiting plaintiffs for attorneys in exchange for referral fees. In the Commission’s view, the provision does not apply to bona fide reimbursement of reasonable expenses of generating address labels and mailing information to investors. The issue of the interpretation of 15 U.S.C. § 78o(c)(8) appears to have arisen in this case because of attempts to amass the largest lead plaintiff “group.” The Commission wishes to make clear that the amalgamation of large numbers of unrelated shareholders into a proposed lead plaintiff group is a serious concern because spch a “group” cannot provide the kind of monitoring that the Reform Act contemplates. But this is a concern that can be dealt with through proper application of the Reform Act’s lead plaintiff provisions," }, { "docid": "12274799", "title": "", "text": "against Renb-Way and its officers. Generally, these complaints alleged that shareholders purchased Rent-Way’s stock at artificially inflated prices during the Class Period as a result of Defendants’ dissemination of false and misleading financial information. By order dated January 11, 2001 these class actions were consolidated. Thereafter, in compliance with the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4(a)(3), several shareholders sought appointment as the statutory Lead Plaintiff. On March 9, 2001, this Court issued an Order appointing Cramer Rosenthal as Lead Plaintiff and the law firm of Gold Bennett Cera & Sidener LLP (“GBCS”) as Lead Counsel. See EZRA Charitable Trust v. Rent-Way, 136 F.Supp.2d 435, 445-46 (W.D.Pa.2001). It was agreed that an amended complaint should not be filed until after Rent-Way filed its Form 10-K for the fiscal year 2000, which would contain Renb-Way’s restated financial results for the time covered by the Class Period. Rent-Way filed its Form 10-K with the SEC on July 2, 2001; however, it also announced its intention to file at some future point an amended Form 10-K which would provide Rent-Way’s restated figures relative to its quarterly unaudited financial information for the years ending September 30, 1999 and September 30, 2000. The latter form was filed by Renb-Way on August 27, 2001. On October 5, 2001, Lead Plaintiff filed an amended consolidated class action complaint (the “Complaint”). The Complaint was seventy-five pages and 161 paragraphs in length and named as Defendants Rent-Way, Morgenstern, Conway, McDonnell, Marini, and PricewaterhouseCoopers LLP (“PwC”). It included a multitude of factual averments relative to claims asserted under §§ 10(b) and 20(a) of the Securities Exchange Act of 1934, 15 U.S.C. §§ 78j(b), t(a) and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5. In December 2001 each of the named Defendants filed individual motions to dismiss the Complaint. Following an extensive motions practice, the Court issued an Order dated July 11, 2002 which denied the motions of Defendants McDonnell and PwC in part and denied the motions of the remaining Defendants in their entirety. See In re Rent-Way Secur. Litig., 209 F.Supp.2d 493 (W.D.Pa.2002). Defendants" }, { "docid": "3431749", "title": "", "text": "v. Aetna, Inc., 221 F.3d 472, 481 (3d Cir.2000). In reviewing the motion to dismiss, we must accept as true all facts.alleged in the complaint and view them in the light most favorable to Union. Id. at 482. Union’s claims are also subject to the heightened pleading standards set forth in Federal Rule of Civil Procedure 9(b) and under the Private Securities Litigation Reform Act (PSLRA) of 1995, Pub.L. No. 104-67, 109 Stat. 737 (codified in scattered sections of 15 U.S.C.), pursuant to 15 U.S.C. § 78u-4(b)(1). III. Discussion A. May Union retain Milberg Weiss tó prosecute this appeal? Lead plaintiffs in securities class actions must secure court approval of their counsel, but Union retained Milberg Weiss as appellate counsel after the notice of appeal was filed and without any court’s approval. We decide that Milberg Weiss may prosecute this appeal but that future lead plaintiffs must obtain court approval for any new counsel, including appellate counsel. Congress passed the PSLRA in part to reduce abusive class action litigation. S.Rep. No. 104-98, at 10-11 (1995), reprinted in 1995 U.S.C.C.A.N. 679, 689-90. To this end, the PSLRA requires courts to appoint as lead plaintiff the “most adequate plaintiff’- — the plaintiff with the most money at stake. 15 U.S.C. § 78u-4(a)(3). The theory behind this requirement is that plaintiffs with the largest financial interests, typically institutional investors, will best represent the plaintiff class’s interests and will choose the best counsel. Elliott J. Weiss & John S. Beckerman, Let the Money Do the Monitoring: How Institutional Investors Can Reduce Agency Costs in Securities Class Actions, 104 Yale. L.J.2053, 2105 (1995); see also S.Rep. No. 104-98, at 11 nn.32, 34, reprinted in 1995 U.S.C.C.A.N. 679, 690 (citing Weiss & Beckerman, supra). Although Congress was confident that the lead plaintiff would select the best counsel, it relied on the courts’ power to “approve or disapprove the lead plaintiffs choice of counsel when necessary to protect the interests of the plaintiff class.” S.Rep. No. 104-98, at 12, reprinted in 1995 U.S.C.C.A.N. 679, 691. Thus, the PSLRA provides that the “most adequate plaintiff shall, subject to" }, { "docid": "11236113", "title": "", "text": "that trading in its shares be suspended. When trading resumed about two months later, CCME’s share price immediately declined 81.8 percent. Plaintiffs had purchased shares of CCME during the putative Class Period. They allege a common course of wrongful conduct by DTT HK during the Class Period, through which DTT HK artificially inflated the share price of CCME by issuing false and misleading statements in its audit report certifying CCME’s 2009 financial statements and by stating that CCME’s financials complied with generally accepted accounting principles (“GAAP”). Plaintiffs assert that CCME’s share price had declined substantially from the Class Period high as a result of the market’s recognition of CCME’s fraud. Plaintiffs commenced the first suit affiliated with this action on February 4, 2011. (Dkt. No. 1.) By Orders dated April 4, 2011 (Dkt. No. 4) and April 15, 2011 (Dkt. No. 28), the Court consolidated four separate actions under this docket. By Order dated June 7, 2011, the Court appointed Irrevocable Trust FBO Lansing Davis and the Davis Partnership LP as Lead Plaintiffs and approved the selection of Hagens Berman Sobol Shapiro LLP as Lead Counsel. (Dkt. No. 50.) Plaintiffs filed an amended and consolidated complaint on October 25, 2011. (Dkt. No. 63.) All defendants in this action moved to dismiss Plaintiffs’ claims under Federal Rules of Civil Procedure 12(b)(6) and 9(b) and the Private Securities Litigation Reform Act of 1995 (“PSLRA”), Pub. L. No. 104-67, 109 Stat. 737, asserting that the amended complaint failed to state a claim upon which relief may be granted and to plead fraud with sufficient particularity. By Order dated February 28, 2013, the Court denied the motions to dismiss the case against CCME and DTT HK, but granted the motion as to the remaining defendants. McIntire, 927 F.Supp.2d at 138-39. On January 17, 2014, the Court entered a default judgment against CCME (Dkt. No. 193), leaving DTT HK as the sole remaining defendant in this action. II. LEGAL STANDARD To certify the Proposed Class, Plaintiffs must satisfy all four of the requirements of Rule 23(a) and one of the categories of Rule 23(b). See" }, { "docid": "23146459", "title": "", "text": "minimize their expenses. Therefore, in the interests of judicial economy and efficiency, the court grants the motions of plaintiffs Weichman and Goldman to consolidate all four actions herein. Lastly, it should be noted that if the discovery process uncovers evidence that the actions should not be consolidated for trial purposes, this decision to consolidate does not preclude the plaintiffs from making a motion for severance prior to trial. III. APPOINTMENT OF LEAD PLAINTIFF AND APPROVAL OF LEAD COUNSEL This motion for appointment of lead plaintiff and approval of lead counsel arises under the provisions Private Securities Litigation Reform Act of 1995 (“PSLRA”), which amended the Securities Exchange Act of 1934, 15 U.S.C. § 78u-4(a). The PSLRA, according to its legislative history, was enacted in response to perceived abuses of the class action procedure. See Fischler v. AmSouth Bancorporation, 1997 WL 118429, at * 1 (citing H.R.Rep. No. 104-369 (1995), reprinted in 1996 U.S.C.C.A.N. 730). Congress was concerned with the plaintiffs’ lawyers’ “race to the courthouse,” the outcome of which was determinative of the lead plaintiff. See S.Rep. No. 104-98 (1995), reprinted in 1996 U.S.C.C.A.N. 679 (“Courts traditionally appoint lead plaintiff and lead counsel in class action lawsuits on a first come, first serve basis_The Committee believes that the selection of the lead plaintiff should rest on considerations other than a speedy filing of the complaint”). By enacting the PSLRA, Congress intended to “increase the likelihood that parties with significant holdings in issuers, whose interests are more strongly aligned with the class of shareholders, will participate in the litigation and exercise control over the selection and actions of plaintiffs counsel.” H.R .Rep. No. 104-369. With respect to the appointment of lead plaintiff, the PSLRA requires that the court “shall appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be the most capable of adequately representing the interests of class members.” See 15 U.S.C. § 78u-1(a)(3)(B)®. In making this determination, the court is guided by the “rebuttable presumption ... that the most adequate plaintiff ... is the person or group of persons that—" }, { "docid": "13909200", "title": "", "text": "financial controls, namely: (i) that BearingPoint expected to take a material goodwill impairment charge of potentially more than $230 million; (ii) that BearingPoint had informed the SEC that it would not timely file its Form 10-K for the year ended December 31, 2004 or its Form 10-Q for the quarter ended March 31, 2005; (iii) that BearingPoint’s internal financial controls remained ineffective; (iv) that BearingPoint expected its independent auditors to issue an adverse opinion on the effectiveness of its internal controls over financial reporting; (v) that BearingPoint had identified that there were items in previous period financial statements for the fiscal year ending December 31, 2004 that would probably require adjustments; and (vi) that Moody’s Investor’s Services, Inc. and Standard and Poor’s Eating Services downgraded Bearing-Point’s credit rating in December 2004 to “below investment grade.” Paradoxically, the market reacted positively to this filing: The day following the filing, BearingPoint’s share price actually rose 13% from $7.55 per share to $8.53 per share on a trading volume of 8,067,900 shares. Corporate announcements that financial statements must be restated typically and quickly spawn a spate of securities fraud lawsuits. BearingPoint’s April 20th announcement was no exception. Within weeks several such lawsuits were filed in this district against BearingPoint and its officers. Thereafter, and pursuant to the Private Securities Litigation Reform Act of 1995 (PSLRA), 15 U.S.C. § 78u-4, and Rule 42, Fed.R.Civ.P., the various lawsuits were consolidated. See In re BearingPoint Sec. Litig., Civil Action No. I:05cv454 (June 27, 2005). After consolidation, pursuant to 15 U.S.C. § 78u-4(a)(3)(B), Matrix was selected as lead plaintiff owing, in part, to Matrix’s sophistication as an investor and its substantial financial interest at stake in the litigation. See In re BearingPoint Sec. Litig., Civil Action No. 1:05cv454 (July 26, 2005). This Order also approved the appointment of Gold Bennett Cera & Sidener LLP (GBCS) as lead plaintiffs counsel. Id. These decisions were confirmed in an Order denying a motion for reconsideration of the appointment. See In re BearingPoint Sec. Litig., Civil Action No. 1:05cv454 (August 15, 2005). Matrix filed its Consolidated Complaint on October 7, 2005" }, { "docid": "12800450", "title": "", "text": "OPINION LECHNER, District Judge. This is an action for securities fraud brought on behalf of purchasers of Ameri can Depository Shares (“ADSs”) of Nice Systems, Ltd. (“NSL”), seeking damages for violations of Section 10(b) and Section 20(a) »of the Securities Exchange Act of 1934 (the “Exchange Act”), as amended, 15 U.S.C. §§ 78j(b) and 78t(a), and Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5. Damages are sought from NSL, David Arzi (“Arzi”), Benjamin Levin (“Levin”) and Mordechai Golan (“Golan”) (collectively, the “Defendants”). Jurisdiction is alleged pursuant to 28 U.S.C. §§ 1331 and 1337 and Section 27 of the Exchange Act, 15 U.S.C. § 78aa. Currently pending is a motion to dismiss (the “Motion to Dismiss”) the second amended complaint (the “Second Amended Complaint”) pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Lead plaintiffs Marvin Frank (“Frank”), Brian Glogower (“Glogower”), Pradeep Jain (“Jain”), Daniel Laser (“Laser”) and Jeffrey Rubin (“Rubin”) (collectively, the “Lead Plaintiffs”) brought suit on behalf of purchasers of NSL ADSs between 4 February 1998 and 24 September 1998 (the “Class Period”). For the reasons set forth below, the Motion to Dismiss is granted. Facts A. Procedural History On 24 May 1999, an order was filed consolidating Marvin Frank v. Nice Systems, Ltd., David Arzi, Benjamin Levin and Mordechai Golan, Civil Action No. 99-1307(AJL) and James Bell v. Nice Systems, Ltd., David Arzi, Benjamin Levin and Mordechai Golan, Civil Action No. 99-1693(AJL) (the “24 May 1999' Order of Consolidation”). 24 May 1999 Order of Consolidation. By order, dated 11 June 1999, (the “11 June 1999 Order”) Frank, Glogower, Jain, Laser and Rubin were appointed lead plaintiffs. 11 June 1999 Order. The law firm of Milberg Weiss Bershad Hynes & Lerach was appointed lead counsel. Id. The Lead Plaintiffs filed a consolidated amended complaint (the “First Amended Complaint”). Thereafter, Defendants submitted a motion to dismiss the First Amended Complaint (the “First Motion to Dismiss”). In their brief in opposition to the First Motion to Dismiss, the Plaintiffs included a footnote requesting an opportunity to file yet another amended complaint. On 24 January 2000, a telephone conference was" }, { "docid": "17772599", "title": "", "text": "Report No. 104-98, 104th Congress, reprinted in 1995 U.S.C.C.A.N. 679, 687-90 (1995). In writing the act, Congress sought to “empower investors so that they, not their lawyers, control securities litigation” by transferring “primary control of private securities litigation from lawyers to investors.” Id. at 685. Congress attempted, therefore, “to increase the likelihood that parties with significant holdings in issuers, whose interests are more strongly aligned with the class of shareholders, will participate in the litigation and exercise control over the selection and actions of plaintiffs counsel.” Id. at 731; see also H.Rep. No. 104-369 at 32 (1995) reprinted in 1996 U.S.C.C.A.N. 730 (The lead plaintiff provisions are “intended to encourage the most capable representatives of the plaintiff class to participate in class action litigation and to exercise supervision and control of the lawyers for the class.”). This effort resulted in the reforms embodied in the PSLRA, which among other things amended the Exchange Act to add section 21D, codified at 15 U.S.C. § 78u-4. Section 21D(a)(3)(B)(I) commands the court to “appoint as lead plaintiff the member or members of the purported plaintiff class that the court determines to be the most capable of adequately representing the interests of class members.” 15 U.S.C. § 78u-4(a)(3)(B)(I). The statute imposes a rebuttable presumption that the most capable plaintiff is the class member with the largest financial interest in the relief sought by the class and otherwise “satisfies the requirements of Rule 23 of the Federal Rules of Civil Procedure.” 15 U.S.C. § 78u-4(a)(3)(B)(iii)(I). This presumption may be rebutted only upon proof by a member of the purported plaintiff class that the presumptively most capable plaintiff will not fairly and adequately protect the interests of the class or is subject to unique defenses that render such plaintiff incapable of adequately representing the class. 15 U.S.C. § 78u-4(a)(3)(B)(iii)(II). Plaintiffs contend that defendants lack standing to oppose their motion to appoint lead plaintiffs. Plaintiffs cite Greebel v. FTP Software, Inc., 939 F.Supp. 57, 60 (D.Mass.1996), which held that the PSLRA limits to other purported class members the right to challenge a proposed lead plaintiff. This issue," }, { "docid": "2260206", "title": "", "text": "analysis shows, the Court is confident that this Settlement is the product of zealous advocacy and arm’s-length negotiation. The Court finds support for this confidence from the manner in which attorneys’ fees shall be awarded. First, the fact that Plaintiffs’ Counsel seek fees in the form of SoftBrands’s stock is strong evidence of counsel’s common interests with the Class. Second, the absconding Defendants have attempted to hide their illicit profits by scattering them across the globe. This element of international intrigue will make recovery of those funds exceedingly difficult. However, the Settlement closely aligns the pecuniary interests of the Class with that of Plaintiffs’ Counsel and the Co Trustees, ensuring a diligent pursuit of those funds on behalf of the Class. These facts, and others, demonstrate that this innovative settlement, although the result of cooperation by adversaries, meets the stringent requirements of fairness and reasonableness to the Class. II. PROCEDURAL HISTORY This litigation was commenced on May 24, 2001, with the filing of several class action complaints against AemisSoft Corporation (“AemisSoft” or the “Corporation”), Boys Poyiadjis (“Poyiadjis”) and Lyeourgos Ky-prianou (“Kyprianou”). Ml of these cases were ultimately assigned to this Court. On or about July 23, 2001, several shareholders filed notices evidencing their intent to move to consolidate the several actions pursuant to Rule 42 of the Federal Rules of Civil Procedure, to be appointed Lead Plaintiffs, and to seek approval of their requested Lead Counsel pursuant to § 21D(a)(3)(B) of the Securities Exchange Act of 1934, 15 U.S.C. § 78u-4, as amended by the Private Securities Litigation Reform Act of 1995 (the “PSLRA”). Before the Lead Plaintiffs’ motions were decided, counsel for the respective shareholder movants entered into a joint stipulation dated August 23, 2001, concerning the appointment of Lead Plaintiffs and the approval of Lead Plaintiffs’ selection of Lead Counsel, an Executive Committee, and Liaison Counsel. By court order dated August 27, 2001, the several cases against AemisSoft, Poyiadjis and Kyprianou were consolidated under the caption In re AremisSoft Corporation Securities Litigation, Civil Action No. 01-2486(JAP). In addition, pursuant to the August 23, 2001 joint stipulation, this Court" }, { "docid": "11612939", "title": "", "text": "Louisiana Teachers, the named lead plaintiff, has suffered injuries in the Secondary Offering. Unlike Garden State, Louisiana Teachers brought claims under both the Securities Act and the Exchange Act. It follows then that the Hitel Group’s interests are adequately protected. II. Appointment of Lead Counsel Under the Reform Act “[t]he most adequate lead plaintiff shall, subject to the approval of the court, select and retain counsel to represent the class.” 15 U.S.C. § 78u-4(a)(3)(B)(v). This language makes clear that the lead plaintiffs “power to ‘select and retain’ lead counsel belongs, at least in the first instance, to the lead plaintiff, and the court’s role is confined to deciding whether to ‘approv[e]’ that choice.” In re Cendant Corp. Litig., 264 F.3d 201, 274 (3d Cir.2001). Both the Conference Committee Report and the Senate Report indicate that the court should not interfere with lead plaintiffs choice of counsel, unless such intervention is necessary to “protect the interests of the plaintiff class.” H.R. Conf. Rep. No. 104-369, at 35 (1995), reprinted in 1995 U.S.C.C.A.N. 730, 734; S.Rep. No. 104-98 at 11-12 (1995) reprinted in 1995 U.S.C.C.A.N. 679, 690. Here, Louisiana Teachers has selected Bernstein Litowitz to serve as lead counsel to the Class. Bernstein Litowitz is a reputable law firm with a long track record of successful prosecutions in securities fraud actions. As stated, Louisiana Teachers has negotiated a fee schedule with Bernstein Litowitz which, from in camera review, the Court finds compatible with recent Third Circuit decisions. Because Bernstein Litowitz appears to have the requisite ability and expertise to manage this litigation, and no reason has been presented why they should not be appointed, this Court approves Louisiana Teachers’ selection of Bernstein Litowitz as lead counsel. CONCLUSION This Court grants Louisiana Teachers’ motion, and it is hereby appointed lead plaintiff. In addition, its selection of Bernstein Litowitz as lead counsel is approved. The motions of StoneRidge Investment, Garden State and the Hitel Group are denied. . On February 27, 2002, these actions were consolidated sua sponte, by Order of the Court. . Under the Reform Act, a plaintiff filing a new putative" }, { "docid": "3319148", "title": "", "text": "because Ford failed to include material information concerning the contingent liability of related lawsuits and recalls in violation of Generally Accepted Accounting Principles (“GAAP”). The district court dismissed the action for failure to state a claim under § 20(b) of the Securities Act and Rule 10b-5. Plaintiffs appeal from the judgment of dismissal with prejudice and the denial of their motion to set aside the judgment and permit them to file an amended complaint. I. Procedural History On January 4, 2001, the district court consolidated a series of class actions against Ford for alleged securities fraud. On February 14, 2001, the district court appointed Pension Fund as lead plaintiff and directed Pension Fund to file a consolidated complaint. The consolidated complaint (“complaint”) was filed March 16, 2001. On May 15, 2001, Ford moved to dismiss the complaint with prejudice pursuant to Federal Rule of Civil Procedure 8, Federal Rule of Civil Procedure 12(b)(6), and/or the Private Securities Litigation Reform Act of 1995 (“PSLRA”), 15 U.S.C. § 78u-4(b)(2). Both parties were permitted to file fifty-page briefs and to submit full copies of the exhibits relied upon in the complaint. On October 16, 2001, extensive oral arguments were held on the motion to dismiss. At the hearing, the district court, over the defendant’s objections, permitted plaintiffs to present and rely on additional exhibits and argue their support for plaintiffs’ allegations of Ford’s scienter. On December 10, 2001, the district court granted Ford’s motion to dismiss with prejudice, and entered judgment in favor of Ford. Specifically, the district court held that the plaintiffs’ complaint failed to state a claim under § 10(b) of the Securities Act and Rule 10b-5 in violation of Federal Rule of Civil Procedure 12(b)(6); that plaintiffs failed to allege any legally cognizable untrue statements or omission of material fact; and that the allegedly false statements praising the quality or safety of Ford products failed to state a claim because they are “vague, corporate puffery or accurate.” With respect to the alleged GAAP violation, the court held that GAAP did not require Ford to disclose potential future recall costs because" }, { "docid": "17252442", "title": "", "text": "fraud and deceit, and common law negligent misrepresentation. 2. February 10, 1984: An order was entered consolidating into the present action lawsuits filed by plaintiffs Bruce Youngman; Lee and Edith Woods; Guillermo Astudillo; Lawrence Epstein; Nessim Husni; and William B. Weinberger. The law firm of Abbey & Ellis was designated as “Chairmen of Plaintiffs’ Executive Committee” and ordered to delegate, monitor and coordinate all work responsibilities to avoid duplication. 3. February 29, 1984: A meeting of plaintiffs’ counsel was held at which time the law firms representing plaintiffs were assigned the following responsibilities: Abbey & Ellis (“Abbey”) (New York): to act as lead counsel by monitoring work assignments as well as participating in all aspects of the case. Barrack, Rodos & Bacine (“Barrack”) (Philadelphia): to be responsible for discovery of third parties. Fabian & Clendenin (“Fabian”) (Salt Lake City): to act as liaison counsel in the United States District Court for the District of Utah and enter into necessary stipulations or other agreements with WICAT’s counsel in Utah. Harvey Greenfield (“Greenfield”) (New York): to be responsible for the discovery of the underwriters. Goodkind, Wechsler, Labaton & Rudoff (\"Goodkind”) (New York): to be responsible for the discovery of the underwriters and preparation of discovery requests. Kaufman, Malchman & Kinley (“Kaufman”) (New York): to be responsible for the discovery of the WICAT Educational Institute and the individual defendants. Milberg, Weiss, Bershad, Specthrie & Lerach (“Milberg”) (San Diego): to be responsible for discovery of WICAT. Pomerantz, Levy, Haudek, Block & Grossman (“Pomerantz”) (New York): to be responsible for discovery of the underwriters and preparation of the amended complaint. Wolf, Popper, Ross, Wolf & Jones (“Wolf”) (New York): to be responsible for preparation of the class action certification and the discovery of WICAT. 4. March 12, 1984: A consolidated complaint was filed alleging the same essential counts as contained in the Greco complaint with the addition of a count under § 61-1-22(2) of the Utah Uniform Securities Act as well as the naming of four additional parties. The complaint alleges material misrepresentations and omissions in connection with the Registration Statement and Prospectus of a" }, { "docid": "2260207", "title": "", "text": "Poyiadjis (“Poyiadjis”) and Lyeourgos Ky-prianou (“Kyprianou”). Ml of these cases were ultimately assigned to this Court. On or about July 23, 2001, several shareholders filed notices evidencing their intent to move to consolidate the several actions pursuant to Rule 42 of the Federal Rules of Civil Procedure, to be appointed Lead Plaintiffs, and to seek approval of their requested Lead Counsel pursuant to § 21D(a)(3)(B) of the Securities Exchange Act of 1934, 15 U.S.C. § 78u-4, as amended by the Private Securities Litigation Reform Act of 1995 (the “PSLRA”). Before the Lead Plaintiffs’ motions were decided, counsel for the respective shareholder movants entered into a joint stipulation dated August 23, 2001, concerning the appointment of Lead Plaintiffs and the approval of Lead Plaintiffs’ selection of Lead Counsel, an Executive Committee, and Liaison Counsel. By court order dated August 27, 2001, the several cases against AemisSoft, Poyiadjis and Kyprianou were consolidated under the caption In re AremisSoft Corporation Securities Litigation, Civil Action No. 01-2486(JAP). In addition, pursuant to the August 23, 2001 joint stipulation, this Court appointed class members George D. Bjurman & Asociates, Ralph DeLuca, Keystone Trading Partners, and Ady Win as Lead Plaintiffs, and approved their selection of Schiffrin & Barroway, LLP as Lead Counsel, Milberg Weiss Bershad Hynes & Lerach LLP and Berger & Montague, P.C. as members of an Executive Committee, and Lite DePalma Greenberg & Rivas, LLC as Liaison Counsel (collectively “Plaintiffs’ Counsel”) for the putative class. The First Amended and Consolidated Class Action Complaint (the “Complaint”) was filed on March 15, 2002, on behalf of a proposed class consisting (with certain exclusions) of all persons who purchased or acquired AemisSoft securities on the open market or otherwise between April 22, 1999 through and including July 27, 2001 (the “Class Period”) and were damaged thereby (the “Class”). The Defendants named in the Complaint are: AemisSoft, Kyprianou, Poy-iadjis, Noel R. Voice, Michael A. Tymvios, M.C. Mathews, and Dr. Paul I. Bloom, all former top executives of AemisSoft; Scott E. Bartel, AemisSoft’s outside counsel and de facto operating officer; Kurt Sedlmayer (also known as Kurt Sedlmeyer), a purported" }, { "docid": "16150246", "title": "", "text": "the lead plaintiff chose what law firms to consider; (3) the process by which the lead plaintiff selected its final choice; (4) the qualifications and experience of counsel selected by the lead plaintiff; and (5) the evidence that the retainer agreement negotiated by the lead plaintiff was (or was not) the product of serious negotiations between the lead plaintiff and the prospective lead counsel. Id. Here, no party, including the Anackers, questions the reasonableness of Cook and Dyson’s selection of firms (Glancy Prongay & Murray LLP (“Glancy”) as Lead Counsel and Montgomery McCracken Walker & Rhoads LLP (“Montgomery”) as Liaison Counsel). Glancy has significant experience with securities litigation and class actions, having successfully prosecuted many such cases in federal and state courts throughout the country. (D.I. 15, ex. C at 1-5) And there is no dispute that Montgomery has the requisite experience to serve in the (largely administrative) role of Liaison Counsel. See KBC Asset Mgmt. NV ex rel. Chemed Corp. v. McNamara, 78 F.Supp.3d 599, 607 n.8 (D. Del. 2015). In light of these facts, and the PSLRA’s “strong presumption” in favor of approving Cook and Dyson’s choice of counsel, the Court will do so here. III. CONCLUSION For the reasons set forth above, Cook and Dyson’s motion is GRANTED, and the Anackers’ motion is DENIED. The Court will separately enter an Order of Consolidation and Appointment of Lead Plaintiff, Lead Counsel and Liaison Counsel. That Order will largely mirror the proposed Order put forward by the Horsehead Investor Group, (Jani Action, D.I. 18-1), as that proposed Order appears to generally track the guidance from the Manual for Complex Litigation (4th ed. 2011) and the content of other similar orders entered in cases of this kind. . The Soto Action is Civil Action Number 16-292-LPS-CJB and the Jani Action is Civil Action No. 16-369-LPS-CJB. Citations herein are, unless otherwise noted, to the docket in the earlier-filed Soto Action. . Other members of the proposed class (mov-ant Rory Johnson, movant Dirk Sievers and a group of movants known as the \"Horsehead Investor Group”) 'had also filed their own motions seeking" }, { "docid": "11612940", "title": "", "text": "104-98 at 11-12 (1995) reprinted in 1995 U.S.C.C.A.N. 679, 690. Here, Louisiana Teachers has selected Bernstein Litowitz to serve as lead counsel to the Class. Bernstein Litowitz is a reputable law firm with a long track record of successful prosecutions in securities fraud actions. As stated, Louisiana Teachers has negotiated a fee schedule with Bernstein Litowitz which, from in camera review, the Court finds compatible with recent Third Circuit decisions. Because Bernstein Litowitz appears to have the requisite ability and expertise to manage this litigation, and no reason has been presented why they should not be appointed, this Court approves Louisiana Teachers’ selection of Bernstein Litowitz as lead counsel. CONCLUSION This Court grants Louisiana Teachers’ motion, and it is hereby appointed lead plaintiff. In addition, its selection of Bernstein Litowitz as lead counsel is approved. The motions of StoneRidge Investment, Garden State and the Hitel Group are denied. . On February 27, 2002, these actions were consolidated sua sponte, by Order of the Court. . Under the Reform Act, a plaintiff filing a new putative class action must provide notice to the class within 20 days of filing the action, informing class members of their right to file a motion for appointment as lead plaintiff. 15 U.S.C. § 78u-4(a)(3)(A)(i). Within 60 days of publishing the notice, any member(s) of the group may apply to the Court to be appointed as lead plaintiff. 15 U.S.C. § 78u-4(a)(3)(A) and (B). Finally, within 90 days after the publication of the notice the Court shall appoint as lead plaintiff the member(s) of the class that the Court determines to be the most capable of adequately representing the interests of class members. 15 U.S.C. § 78u-4(a)(3)(B). . Federal Rule of Civil Procedure 23(a) sets forth the following prerequisites for a class action: (1) numerosity, (2) common questions of law or fact, (3) typicality of claims or defenses, and (4) fair and adequate representation of the class by the representative parties. Fed. R. Civ.P. 23(a). . It should be noted that Garden State objects to StoneRidge Investment's loss calculation alleging that it only sets forth the" }, { "docid": "11911864", "title": "", "text": "Ngo v. Petrobras, No. 14-cv-9760 (S.D.N.Y. filed Dec. 10, 2014); Messing v. Petrobras, No. 14-cv-9847 (S.D.N.Y. filed Dec. 12, 2014); City of Providence v. Petrobras et al., No. 14-cv-10117 (S.D.N.Y. filed Dec. 24, 2014); Kennedy v. Petrobras, No. 15-cv-93 (S.D.N.Y. filed Jan. 7, 2015). By Order dated February 17, 2015, the Court consolidated the five related cases under the above caption. In accordance with the Private Securities Litigation Reform Act (“PSLRA”), 15 U.S.C. § 78u-4(a)(3), the Court received motions by members of the putative class for appointment as lead plaintiff. Following full briefing and oral argument, the Court, by Order dated March 4, 2015, appointed USS as dead plaintiff and approved its choice of lead counsel,-the reasons for which it explained by Memorandum dated May 17, 2015. See ECF No. 99; In re Petrobras Secs. Litig., 104 F.Supp.3d 618, No. 14-cv-9662, 2015 WL 2341359 (S.D.N.Y. May 17, 2015). On March 27, 2015, USS filed its Consolidated Amended ' Complaint (“CAC”), which named additional plaintiffs Union Asset Management Holding AG (“Union”) and the Employees’ Retirement System of the State of Hawaii (“Hawaii ERS”) with respect to the claims brought under the Securities Act. ECF No. 109. Plaintiffs then moved to lift the mandatory stay of discovery imposed by the PSLRA with respect to documents that defendants had already produced to regulatory, governmental, or investigative agencies, and requested permission to initiate discovery requests on foreign non-parties pursuant to the Inter-American Convention on Letters Rogatory and the Hague Convention on the Taking of Evidence Abroad in Civil and Commercial Matters. The Court denied plaintiffs’ motion by Memorandum Order dated April 13,2015. ECF No. 137. The Petrobras Defendants and the Underwriter Defendants then moved to dismiss the CAC pursuant-to Rules 8, 9(b), 12(b)(1), and 12(b)(6) of . the Federal Rules of Civil Procedure. By “bottom line” Order, dated July 9, 2015, the Court granted in part and denied in part defendants’ motion. ECF No. 189. This Opinion explains the reasons for these rulings on the motion to dismiss. The CAC alleges facts' relevant to plaintiffs’ claims under the Exchange Act and Brazilian law (which" }, { "docid": "22586253", "title": "", "text": "Hollín, individually and on behalf of all others similarly situated, began the instant class action securities fraud suit against defendant Scholastic Corporation, a book publishing company, and its officer Richard Robinson in the United States District Court for the Southern District of New York (Keenan, J.). The complaint asserted claims pursuant to § 10(b) of the Securities Exchange Act of 1934 (Exchange Act), 15 U.S.C. § 783(b) (1994), Rule 10b-5 promulgated thereunder, 17 C.F.R. § 240.10b-5 (2000), and § 20(a) of the Exchange Act, 15 U.S.C. § 78t(a) (1994). A consolidated amended complaint was filed August 13, 1997 and dismissed on December 15, 1998 following a Rule 12(b)(6) motion brought by defendants, see In re Scholastic Corp. Sec. Litig., No. 99 Civ. 2447, 1998 WL 872422 (S.D.N.Y. Dec. 15, 1998), and the district court granted plaintiffs leave to amend. On March 8, 1999 court-appointed lead plaintiffs Richard Truncellito and the City of Philadelphia filed a corrected second consolidated amended class action complaint. They named Scholastic and Raymond Marchuk, who serves as Scholastic’s vice president for finance and investor relations, as defendants. The plaintiff class includes those persons who purchased Scholastic common stock during the class period and who sustained damages allegedly because defendants made materially false and misleading statements and concealed adverse facts regarding their publishing business, thereby causing plaintiffs to purchase the stock at artificially inflated prices. Defendants in response filed another motion to dismiss under Rule 12(b)(6), arguing that plaintiffs failed to state a claim and failed to plead fraud with particularity, as required under Federal Rule of Civil Procedure 9(b) and the Private Securities Litigation Reform Act (Securities Reform Act), Pub.L. No. 104-67, 109 Stat. 737 (1995). The district court granted the motion. See In re Scholastic Corp. Sec. Litig. (Scholastic Corp.), No. 99 Civ. 2447, 2000 WL 91939 (S.D.N.Y. Jan. 27, 2000). On appeal, we examine the factual allegations set out in plaintiffs’ second amended complaint in some detail, assuming them, as we must, to be true. Novak v. Kasaks, 216 F.3d 300, 305 (2d Cir.), cert. denied, — U.S. -, 121 S.Ct. 567, 148 L.Ed.2d" }, { "docid": "3431748", "title": "", "text": "required Medco to pay Merck 50% of its lost revenue if it failed to hit the sales targets. C. The class action is filed The initial complaint was filed in July 2002. Union was appointed lead plaintiff in November 2002, and it filed its corrected amended complaint in March 2003. At the time, Union’s lead counsel was Bernstein Litowitz Berger & Grossman LLP. Defendants filed a motion to dismiss pursuant to Rule 12(b)(6), and the District Court granted it in July 2004. Union appealed that decision in August 2004. Only then did it hire Milberg Weiss Bershad & Schulman LLP as its counsel for this appeal. II. Jurisdiction and Standard of Review The District Court had subject matter jurisdiction under 28 U.S.C. § 1331 and under 15 U.S.C. §§ 77v and 78aa. It granted a motion to dismiss under Rule 12(b)(6), so we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review of the District Court’s grant of a Rule 12(b)(6) motion, and “we apply the same test as the district court.” Maio v. Aetna, Inc., 221 F.3d 472, 481 (3d Cir.2000). In reviewing the motion to dismiss, we must accept as true all facts.alleged in the complaint and view them in the light most favorable to Union. Id. at 482. Union’s claims are also subject to the heightened pleading standards set forth in Federal Rule of Civil Procedure 9(b) and under the Private Securities Litigation Reform Act (PSLRA) of 1995, Pub.L. No. 104-67, 109 Stat. 737 (codified in scattered sections of 15 U.S.C.), pursuant to 15 U.S.C. § 78u-4(b)(1). III. Discussion A. May Union retain Milberg Weiss tó prosecute this appeal? Lead plaintiffs in securities class actions must secure court approval of their counsel, but Union retained Milberg Weiss as appellate counsel after the notice of appeal was filed and without any court’s approval. We decide that Milberg Weiss may prosecute this appeal but that future lead plaintiffs must obtain court approval for any new counsel, including appellate counsel. Congress passed the PSLRA in part to reduce abusive class action litigation. S.Rep. No. 104-98, at 10-11 (1995)," }, { "docid": "11236114", "title": "", "text": "the selection of Hagens Berman Sobol Shapiro LLP as Lead Counsel. (Dkt. No. 50.) Plaintiffs filed an amended and consolidated complaint on October 25, 2011. (Dkt. No. 63.) All defendants in this action moved to dismiss Plaintiffs’ claims under Federal Rules of Civil Procedure 12(b)(6) and 9(b) and the Private Securities Litigation Reform Act of 1995 (“PSLRA”), Pub. L. No. 104-67, 109 Stat. 737, asserting that the amended complaint failed to state a claim upon which relief may be granted and to plead fraud with sufficient particularity. By Order dated February 28, 2013, the Court denied the motions to dismiss the case against CCME and DTT HK, but granted the motion as to the remaining defendants. McIntire, 927 F.Supp.2d at 138-39. On January 17, 2014, the Court entered a default judgment against CCME (Dkt. No. 193), leaving DTT HK as the sole remaining defendant in this action. II. LEGAL STANDARD To certify the Proposed Class, Plaintiffs must satisfy all four of the requirements of Rule 23(a) and one of the categories of Rule 23(b). See In re Livent, Inc. Noteholders Sec. Litig., 210 F.R.D. 512, 514 (S.D.N.Y.2002) (“Livent”). To meet Rule 23(a)’s prerequisites, Plaintiffs must demonstrate that: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). Plaintiffs seek certification under Rule 23(b)(3), which requires that they further demonstrate that common questions of law or fact predominate over any questions affecting individual members and that maintaining a class action is superior to other available methods of adjudication. See Fed.R.Civ.P. 23(b)(3). Trial courts are given substantial discretion in determining whether to grant class certification because “ ‘the district court is often in the best position to assess the propriety of the class and has the ability ... to alter or modify the class, create subclasses, and decertify the class whenever" } ]

[ { "docid": "978159", "title": "", "text": "by the eleventh amendment if the retroactive benefits are to be paid from the state treasury. See, e. g., Monell v. Department of Social Services of City of New York, 532 F.2d 259, 264-67 (2d Cir. 1976), cert. granted, 429 U.S. 1071, 97 S.Ct. 807, 50 L.Ed.2d 789 (1977); Muzquiz v. City of San Antonio, 528 F.2d 499 (5th Cir. 1976) (en banc), pet. for cert. filed, 44 U.S.L.W. 3703 (U.S. May 23, 1976) (No. 75-1723); Patton v. Conrad Area School Dist., 388 F.Supp. 410 (D.Del.1975) This analogy is criticized in Developments in the Law: Section 1983 and Federalism, supra, 90 Harv.L.Rev. at 1198-99. However, we need not choose between the conflicting approaches to Owen’s claims that he may obtain monetary relief from the City through the individual city officials in their official capacities under section 1983, because we are convinced that Owen has established a claim on his second theory, that of an implied right of action arising from the Constitution itself. 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), clearly recognized that a federal “court of law vested with jurisdiction over the subject matter of a suit has the power — and therefore the duty — to make principled choices among traditional judicial remedies” to vindicate rights arising from positive law, such as the Constitution, without express congressional authorization. 403 U.S. at 408 n.8, 91 S.Ct. at 2011 (Harlan, J., concurring). We are confronted with the fundamental questions of whether the remedies Owen seeks against the City of Independence are available as “necessary” or “appropriate” to the vindication of fourteenth amendment values, see Bivens, supra, 403 U.S. at 397, 191 S.Ct. 1999, 2011; id. at 406, 91 S.Ct. 1999 (Harlan, J., concurring), and whether Congress has expressly decided that a person injured by a municipal violation of the Constitution may not recover money from the city but must be limited to remedies against others specifically provided by Congress, Bivens, supra, 403 U.S. at 397, 91 S.Ct. 1999. Some courts have held that municipal immunity from" } ]

[ { "docid": "253865", "title": "", "text": "fourteenth amendment. Compare Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977), vacated 438 U.S. 902, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978), and Turpin v. Mailet, 579 F.2d 152 (2d Cir.), vacated sub nom West Haven v. Turpin, - U.S. -, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978), with Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977). Although not directly deciding the issue, the Supreme Court referred to this question in Monell Justice Powell, concurring, stated: Rather than constitutionalize a cause of action against local government that Congress intended to create in 1871, the better course is to confess error and set the record straight, as the Court does today. 436 U.S. at 713, 98 S.Ct. at 2047 (footnote omitted). The Court subsequently vacated and remanded the Turpin and Owen cases for reconsideration in light of its decision in Monell. 438 U.S. 902, 98 S.Ct. 3118 (1978); - U.S. -, 99 S.Ct. 554 (1978). Upon reconsideration, the Second Circuit concluded that “there is no place for a cause of action against a municipality directly under the 14th Amendment, because the plaintiff may proceed against the [municipality] under § 1983.” Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979). Because the plaintiff herein has stated a cause of action under § 1983 we decline to imply the existence of a remedy directly under the Constitution. See Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978), Smith v. Ambrogio, 456 F.Supp. 1130, 1134 (D.Conn.1978). There is no inconsistency between this holding and our conclusion above that the plaintiff cannot recover damages because the municipal defendants have a good faith defense. To begin with, Bivens implies that specific congressional action would preclude judicial creation of a damages remedy against the federal government, 403 U.S. at 397, 91 S.Ct. 1999, and judicial restraint is even more appropriate where judicially-created federal remedies may intrude into state and local governmental decisionmaking. Molina v. Richardson, 578 F.2d 846, 850-53 (9th Cir. 1978), cert. denied,-U.S.-, 99 S.Ct. 724, 58 L.Ed.2d 707 (1978). The municipal good faith defense is, as noted below," }, { "docid": "13210757", "title": "", "text": "of the Federal Rules of Civil Procedure, claiming that Turpin failed to state a claim against it. Judge Newman adopted the findings of Magistrate Arthur H. Latimer on this issue. The Judge held that, under the circumstances presented, a right of action could not be implied directly from the fourteenth amendment. He also dismissed the pendent state claims. Turpin, seeking an instant appeal, then moved successfully for the entry of a final judgment on the claims against the City under Rule 54(b) of the Federal Rules of Civil Procedure, the action against the individual defendants still continuing. In granting Turpin’s motion, Judge Newman noted that over 30 lawsuits in the District of Connecticut presented claims similar to that pressed against the City of West Haven. This appeal was, accordingly, allowed. II. Turpin’s decision to proceed against the City directly under the fourteenth amend ment, invoking the jurisdictional provisions of 28 U.S.C. § 1331, results, of course, from judicial interpretations of 42 U.S.C. § 1983, the modern day codification of Section 1 of the Civil Rights Act of 1871. In 1961, the Supreme Court decided that § 1983 could not be used to impose liability in damages upon municipalities. Monroe v. Pape, 365 U.S. 167,187-91, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961). After an analysis of the provision’s legislative history, Justice Douglas wrote that Congress could not have intended to include municipalities among the class of “persons” capable of being sued under the statute. Subsequently, the rationale of Monroe was logically extended to preclude § 1983 injunctive actions against municipalities. City of Kenosha v. Bruno, 412 U.S. 507, 93 S.Ct. 2222, 37 L.Ed.2d 109 (1973). Accordingly, individuals seeking relief against municipalities for the deprivation of their civil rights have often turned directly to the fourteenth amendment. They have relied on the principle expounded 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), that, even in the absence of a statutory right of action, courts have the power to fashion common law remedies for constitutional wrongs. The facts in" }, { "docid": "21907209", "title": "", "text": "serious doubt. First, we note that in two cases remanded by the Supreme Court for reconsideration in light of Monell, City of West Haven v. Turpin, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978), vacating Turpin v. Mail-et, 579 F.2d 152 (2d Cir. 1978) (en banc); City of Independence v. Owen, 438 U.S. 902, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978), vacating 560 F.2d 925 (8th Cir. 1977), the courts of appeals decided on remand that a Bivens action against municipalities was no longer appropriate in light of Monell. Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979) (en banc) (“there is no place for a cause of action against a municipality directly under the 14th Amendment, because the plaintiff may proceed against the [city] under § 1983”); Owen v. City of Independence, 589 F.2d 335, 337 (8th Cir. 1978) (finding it “unnecessary to rely on the Bivens doctrine” because “[b]y enacting section 1983, Congress has provided an appropriate and exclusive remedy for constitutional violations committed by municipalities”), rev’d on other grounds, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). See also Cale v. City of Covington, 586 F.2d 311, 317-18 (4th Cir. 1978). Although we need not go so far as to hold that section 1983 now bars any Bivens action against municipalities, these cases clearly undermine appellant’s contention that Monell does not preclude a Bivens claim against local governments based solely on a respondeat superior theory. Second, we think it significant that the decision in Monell clearly applied to claims of constitutional infringement brought pursuant to section 1983. Indeed, the Court in Monell observed that “the touchstone of the § 1983 action against a government body is an allegation that official policy is responsible for a deprivation of rights protected by the Constitution .... ” 436 U.S. at 690, 98 S.Ct. at 2035. With this in mind, we believe that it would be anomalous indeed to acknowledge that local governments are not subject to respondeat superior liability on claims of constitutional violation brought under section 1983 and, at the same time, hold that" }, { "docid": "21907208", "title": "", "text": "573 F.2d 998, 1003 (8th Cir. 1978) (sovereign immunity protects municipalities from respondeat superior liability in Bivens claims). Respondeat superior liability was not in issue in Bivens, and nothing in Bivens suggests that respondeat superior liability must be available in actions brought directly under the Constitution. See Dean v. Gladney, 621 F.2d 1331, 1335-36 (5th Cir. 1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981). Indeed, one of the reasons the Court in Bivens held that individuals whose Fourth Amendment rights were violated by federal officials had an implied cause of action for damages directly under the Constitution was that no other remedy was available. See Hearth, Inc. v. Department of Public Welfare, 617 F.2d 381, 382 (5th Cir. 1980). Clearly, that is not the situation in this case, in which appellant seeks relief under section 1983 as well as under the Constitution. Appellant argues that Monell’s interpretation of section 1983 does not preclude us from allowing respondeat superior liability against local governments in Bivens actions. This argument is subject to serious doubt. First, we note that in two cases remanded by the Supreme Court for reconsideration in light of Monell, City of West Haven v. Turpin, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978), vacating Turpin v. Mail-et, 579 F.2d 152 (2d Cir. 1978) (en banc); City of Independence v. Owen, 438 U.S. 902, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978), vacating 560 F.2d 925 (8th Cir. 1977), the courts of appeals decided on remand that a Bivens action against municipalities was no longer appropriate in light of Monell. Turpin v. Mailet, 591 F.2d 426, 427 (2d Cir. 1979) (en banc) (“there is no place for a cause of action against a municipality directly under the 14th Amendment, because the plaintiff may proceed against the [city] under § 1983”); Owen v. City of Independence, 589 F.2d 335, 337 (8th Cir. 1978) (finding it “unnecessary to rely on the Bivens doctrine” because “[b]y enacting section 1983, Congress has provided an appropriate and exclusive remedy for constitutional violations committed by municipalities”), rev’d on other grounds," }, { "docid": "18330513", "title": "", "text": "Defendants’ motion to strike is denied as paragraphs 4 through 10 form the basis of plaintiffs’ claim of police brutality and therefore have considerable bearing on the subject matter of the litigation. SO ORDERED. . Just one day prior to the issuance of the Supreme Court’s opinion in Monell, the Second Circuit released its decision in Turpin v. Mailet, 579 F.2d 152 (2d Cir. 1978), in which it extended a cause of action for damages against municipalities for § 1983 violations under the theory enunciated 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 Supreme Court vacated Turpin in light of Monell, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978) and upon remand, the Second Circuit modified its opinion accordingly, 591 F.2d 426 (2d Cir. 1979). A jury trial was held thereafter at which a verdict of $8,000 was rendered against the city of West Haven. Turpin v. Mailet, Civil No. N-78-181 (D.Conn. Apr. 5, 1979). . A related issue arose in Batista v. Rodriquez, Civil No. B-78-85 (D.Conn. May 18, 1979), in which plaintiffs, having set forth a complaint similar to that in Penzerro, moved for summary judgment. This pre-trial motion was denied for two reasons: first, the motion was premature as the police officers’ liability had not been established, and second, the Smith and Penzerro opinions raised substantial questions as to the sufficiency of the plaintiffs’ allegations." }, { "docid": "18582636", "title": "", "text": "six other circuits have reached this conclusion, based upon the teachings of Bivens v. Six Unknown Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Turpin v. Mailet, 579 F.2d 152 (2d Cir.1978) (en banc); Owen v. City of Independence, 560 F.2d 925, 932-34 (8th Cir.1977), petition for cert. pending; McDonald v. Illinois, 557 F.2d 596, 604 (7th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453 (1977); Kite v. Kelley, 546 F.2d 334, 337 (10th Cir.1976); Davis v. Passman, 544 F.2d 865, 873 (5th Cir.1977); Cox v. Stanton, 529 F.2d 47, 50-51 (4th Cir.1975). See also Gray v. Union County Intermediate Education District, supra, 520 F.2d [803] at 805 [ (9th Cir.1975) ]. Cf. Gagliardi v. Flint, 564 F.2d 112, 114-16 (3rd Cir.1977), petition for cert. pending; Kostka v. Hogg, 560 F.2d 37, 41 n. 5 (1st Cir.1977). 586 F.2d at 624. All of the cases cited above were decided under the then prevailing rule that municipalities were not “persons” within the meaning of § 1983 and hence, were immune from liability under that statute. See Monroe v. Pape, 365 U.S. 167, 187, 81 S.Ct. 473, 484, 5 L.Ed.2d 492 (1961). Relying on the Supreme Court’s decision in Bivens, these circuit courts implied a direct cause of action under the Constitution in order to provide a remedy for plaintiffs whose rights had been violated by municipal governments. In Monell, the Supreme Court partially reversed its previous holding in Monroe, and held that municipalities could be held liable under § 1983 for constitutional violations which resulted from an “official municipal policy.” 436 U.S. at 690, 694, 98 S.Ct. at 2035, 2037 (Monell reaffirmed the portion of Monroe holding that municipalities could not be held liable for the actions of individual officials under a theory of respondeat superior. Id. at 691, 98 S.Ct. at 2036). In light of Monell, several circuits reversed their previous positions and held that plaintiffs could no longer bring a direct cause of action against a municipality under the Constitution and 28 U.S.C. § 1331;" }, { "docid": "1423294", "title": "", "text": "municipal liability stated by the Court. The dicta therefore is persuasive authority as to the scope of municipal liability under the Civil Rights Act and I shall follow it. . See Jones, 429 F.Supp. at 856 & nn. 9-10 (citing cases); McKnight, 438 F.Supp. at 816-17 & n. 4. The Fifth Circuit held in broad terms that an action for damages may not be brought under the Due Process Clauses of the Fifth and Fourteenth Amendments. Davis v. Passman, 571 F.2d 793 (1978) (en banc). The First Circuit held that, at least in the absence of direct involvement by the municipality, a damages action against municipalities may not be asserted directly under the Fourteenth Amendment; it left open the question of equitable relief. Kostka v. Hogg, 560 F.2d 37 (1977). The Second and Seventh Circuits recognized actions asserted against governmental entities directly under the Fourteenth Amendment, but only if the entity was directly involved in the wrongdoing. Turpin v. Mailet, 579 F.2d 152 (2d Cir., June 5, 1978) (en banc); McDonald v. Illinois, 557 F.2d 596, 604-05 (7th Cir.), cert. denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453 (1977). The Eighth Circuit authorized equitable relief under the Fourteenth Amendment, but left open the question of damages. Owen v. City of Independence, 560 F.2d 925, 932-34 & n. 9 (1977), vacated and remanded for reconsideration in light of Monell, 438 U.S. -, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978). See generally Davis v. Passman, supra, 571 F.2d at 807-08 n. 6 (dissenting opinion) (reviewing decisions in each circuit). My opinion in Jones was addressed only to the damages question, and I left open the question of equitable relief. See Flesch, 434 F.Supp. at 976; McKnight, 438 F.Supp. at 816-17; Schweiker, 442 F.Supp. at 1141 n. 4. . The complaint does not specifically use the words “pendent jurisdiction,” but it does assert various claims under state law. That assertion is sufficient to invoke the pendent jurisdiction doctrine. Cf., e. g., Andrus v. Charlestone Stone Products Co., 436 U.S. -, -n. 6, 98 S.Ct. 2002, 2005 n. 6, 56 L.Ed.2d 570" }, { "docid": "22434514", "title": "", "text": "pursuant to § 1101(a)(2) of the Business Corporation Law (McKinney 1963) and § 63(12) of the Executive Law (McKinney 1972), to enjoin fraudulent practices of corporations and their officers. The Court of Appeals noted that the statutes authorizing the Attorney General to sue did not make the defendants’ practices unlawful and that statutes providing “only additional remedies or standing” are not statutes that create or impose liabilities within the meaning of § 214(2). 38 N.Y.2d at 85, 378 N.Y.S.2d at 655, 341 N.E.2d at 224. Section 1983 is plainly not a statute that makes anyone’s conduct unlawful, but neither is it a statute that provides only “additional” remedies for well-established liabilities. In the absence of § 1983, those who transgress constitutional commands would be liable for damages only on the basis of an implied cause of action grounded directly on the Constitution. While such liability has been recognized, 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) (Fourth Amendment); Turpin v. Mailet, 579 F.2d 152 (2d Cir.) (en banc) (Fourth Amendment liability of municipality), vacated and remanded for reconsideration sub nom. City of West Haven v. Turpin, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978); Paton v. LePrade, 524 F.2d 862, 869-70 (3d Cir. 1975) (First Amendment), it surely is not as “old and common” as the liability for fraud that predated the statutes authorizing the state Attorney General’s suit in Cortelle. 38 N.Y.2d at 86, 378 N.Y.S.2d at 657, 341 N.E.2d at 226. Section 1983 can hardly be said to supply an “additional” remedy when, for the 100 years after its enactment in 1871 until Bivens was decided in 1971, it was the only means recognized for imposing damage liability specifically for violations of the Constitution. Moreover, when § 1983 provides a remedy, an implied cause of action grounded on the Constitution is not available. Turpin v. Mailet, 591 F.2d 426 (2d Cir. 1979) (en banc) (rejecting cause of action against municipality grounded directly on Constitution because of availability of § 1983 after Monell v." }, { "docid": "12161371", "title": "", "text": "the acts of their employees on appellants’ implied cause of action under the Constitution, predicated on Bivens v. Six Unknown Named Federal Nar cotics Agents, or on their section 1983 claim “because of the doctrine of sovereign immunity.” Only the Bivens claim is before us on appeal. The district court correctly noted that “Bivens establishes a cause of action against an individual federal officer if the federal officer violated the plaintiff’s constitutional rights and such violation is a proximate cause of damages.” He observed, however, that “Bivens leaves intact the doctrine of sovereign immunity.” We agree with the district court that Bivens does not sanction the imposition of, and should not be read to impose, respondeat superior liability on a municipality or a county for the acts of its employees. Our conclusion here gains support from the reasoning of decisions in six of our sister circuits that have considered the question before us. See Jones v. City of Memphis, 586 F.2d 622 (6th Cir. 1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1230, 59 L.Ed.2d 464 (1979); Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978); Turpin v. Mailet, 579 F.2d 152 (2d Cir.) (en banc), vacated sub nom. City of West Haven v. Turpin, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978), modified on remand, 591 F.2d 426 (2d Cir. 1979) (en banc); Nix v. Sweeney, 573 F.2d 998 (8th Cir. 1978); Jamison v. McCurrie, 565 F.2d 483 (7th Cir. 1977); Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977). But see Dellums v. Powell, 566 F.2d 216 (D.C.Cir. 1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3147, 57 L.Ed.2d 1161 (1978). In Bivens the Supreme Court permitted individuals whose fourth amendment rights had been violated by federal agents to bring a claim for monetary damages against those agents directly under the fourth amendment. Respondeat superior liability was not at issue in Bivens; consequently, the majority opinion did not broach that subject. Nothing in Bivens, as we read it, supports the imposition of respondeat superior liability. In fact, as the district court below noted, both" }, { "docid": "18899985", "title": "", "text": "Estelle v. Gamble, 429 U.S. 97, 102-06, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Gregg v. Georgia, 428 U.S. 153, 169-74, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976). . Act of June 25, 1948, ch. 646, 62 Stat. 982, codified at 28 U.S.C. §§ 1346(b), 2671 et seq. . The Court does not address the issue of whether a private action can be implied under the Fifth or Eighth Amendments when the Federal Tort Claims Act, for whatever reason, does not provide a remedy for the alleged deprivations of constitutional rights. Cf. Mayo v. United States, 425 F.Supp. 119 (E.D.Ill.1977). . 28 U.S.C. § 2680(h) (Tort Claims Act not applicable to “[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”). . Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 392, 395-97, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971); Monaghan, The Supreme Court, 1974 Term— Foreword: Constitutional Common Law, 89 Harv.L.Rev. 1 (1975). . See, e. g., Turpin v. Mailet, 579 F.2d 152 (2d Cir. 1978) (en banc) (Fourteenth Amendment); Dellums v. Powell, 184 U.S.App.D.C. 275, 302-303, 566 F.2d 167, 194-95 (1977), cert, denied, -U.S. -, 98 S.Ct. 3146, 57 L.Ed.2d 1161 (1978) (First Amendment); Jacobson v. Tahoe Regional Planning Agency, 558 F.2d 928 (9th Cir.), vacated on other grounds, 566 F.2d 1353 (9th Cir. 1977) (Fifth Amendment); Owen v. City of Independence, 560 F.2d 925, 932 (8th Cir. 1977), vacated and remanded, - U.S. -, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978) (Fourteenth Amendment; remanded by Supreme Court in light of Moaell v. Department of Social Servs. of City of N.Y., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978)); Yiamouyiannis v. Chemical Abstracts Serv., 521 F.2d 1392, 1393 (6th Cir. 1975) (First Amendment). See generally Lehmann, Bivens and Its Progeny: The Scope of a Constitutional Cause of Action for Torts Committed by Government Officials, 4 Hastings Const’l L.Q. 531, 567 (1977). . For example, the Second Circuit has failed to expand Bivens beyond the Fourth and" }, { "docid": "12161388", "title": "", "text": "direct remedy against the Government might be as a substitute for individual official liability, the sovereign still remains immune to suit.” 403 U.S. at 410, 91 S.Ct. at 2011-2012 (Harlan, J., concurring). The court also quoted extensively from Chief Justice Burger’s dissent, which concluded that “Congress should develop an administrative or quasi-judicial remedy against the government itself to afford compensation and restitution for persons whose Fourth Amendment rights have been violated. The venerable doctrine of respondeat superior in our tort law provides and entirely appropriate conceptual basis for this remedy.” Id. at 422, 91 S.Ct. at 2017 (Burger, C. J., dissenting). . As the Second Circuit noted in Turpin v. Maitet, 579 F.2d at 167: In rejecting respondeat superior, we have created a harmonious legislative and judicial scheme for the enforcement of the fourteenth amendment, and thereby adhere to the teaching of Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), that implied remedies must, in nature and scope, be “consistent” with the legislative enactments already governing an area. Turpin was vacated by the Supreme Court and remanded for reconsideration in light of Monell. See City of West Haven v. Turpin, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978). It is thus of no binding force and effect, and we cite it only for its reasoning, recognizing that the respondeat superior issue was not reached on remand. See Turpin v. Mailet, 591 F.2d 426 (2d Cir. 1979) (en banc). . In the recent case of Hearth, Inc. v. Department of Public Welfare, 617 F.2d 381 (5th Cir. 1980) (per curiam), we considered the relationship between a Bivens -type action and a claim under § 1983: Although there have been a few notable exceptions, see e. g., Davis v. Passman, 422 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979); Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the federal courts, and this Circuit in particular, have been hesitant to find causes of action arising directly from the Constitution. Our" }, { "docid": "9875042", "title": "", "text": "of action under 28 U.S.C. § 1331 for violation of constitutional rights is available against a municipality. See Gordon v. City of Warren, 579 F.2d 386, 389 (6th Cir. 1978); Wiley v. Memphis Police Department, 548 F.2d 1247, 1254 (6th Cir.), cert, denied, 434 U.S. 822, 98 S.Ct. 65, 54 L.Ed.2d 78 (1977); Amen v. City of Dearborn, 532 F.2d 554, 559 (6th Cir. 1976); Hanna v. Drobnick, 514 F.2d 393, 398 (6th Cir. 1975); Bosely v. City of Euclid, supra, 496 F.2d at 195; Foster v. City of Detroit, 405 F.2d 138, 144 (6th Cir. 1968); Foster v. Herley, 330 F.2d 87, 91 (6th Cir. 1964). At least six other circuits have reached this conclusion, based upon the teachings of Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). See Turpin v. Mailet, 579 F.2d 152 (2d Cir. 1978) (en banc); Owen v. City of Independence, 560 F.2d 925, 932-34 (8th Cir. 1977), petition for cert, pending; McDonald v. Illinois, 557 F.2d 596, 604 (7th Cir.), cert, denied, 434 U.S. 966, 98 S.Ct. 508, 54 L.Ed.2d 453 (1977); Kite v. Kelley, 546 F.2d 334, 337 (10th Cir. 1976); Davis v. Passman, 544 F.2d 865, 873 (5th Cir. 1977); Cox v. Stanton, 529 F.2d 47, 50-51 (4th Cir. 1975). See also Gray v. Union County Intermediate Education District, supra, 520 F.2d at 805. Cf. Gagliardi v. Flint, 564 F.2d 112, 114-16 (3rd Cir. 1977), petition for cert, pending; Kostka v. Hogg, 560 F.2d 37, 41 n.5 (1st Cir. 1977). III. The only issue on this appeal is whether the doctrine of respondeat superior should be applied to actions against municipalities brought directly under the fourteenth amendment and § 1331. Appellee has not contended that the City of Memphis was negligent in failing to provide proper training and supervision of the police officers who allegedly violated appellee’s constitutional rights. Nor has appellee argued that the City ratified or condoned the alleged misconduct. In Monell the Supreme Court said: [T]he language of § 1983, read against the background of the same" }, { "docid": "21907206", "title": "", "text": "identify those issues and to point to supporting evidence in the record. ^ «. III. Respondeat Superior Liability on Bivens Claims In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court squarely held that Congress did not intend local governments to be subject,to respondeat superior liability under 42 U.S.C. § 1983 for the acts of their employees. 436 U.S. at 691, 694, 98 S.Ct. at 2036, 2037. Appellant contends that the District Court erred in elftending Monell’s proscription to his claims brought directly under the Constitution pursuant to Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We disagree. As appellant concedes, every Circuit that has considered this question following the decision in Monell has concluded that municipalities are not subject to respondeat superior liability in Bivens actions. Ellis v. Blum, 643 F.2d 68, 85 (2d Cir. 1981); Dean v. Gladney, 621 F.2d 1331, 1334-37 (5th Cir. 1980), cert. denied, 450 U.S. 983, 101 S.Ct. 1521, 67 L.Ed.2d 819 (1981); Jones v. City of Memphis, 586 F.2d 622, 624-25 (6th Cir. 1978), cert. denied, 440 U.S. 914, 99 S.Ct. 1230, 59 L.Ed.2d 464 (1979); Molina v. Richardson, 578 F.2d 846, 847-54 (9th Cir.), cert. denied, 439 U.S. 1048, 99 S.Ct. 724, 58 L.Ed.2d 707 (1978); see Cale v. City of Covington, 586 F.2d 311, 317-18 (4th Cir. 1978) (no Bivens action available against municipalities after Monell); cf. DeShields v. United States Parole Commission, 593 F.2d 354, 356 (8th Cir. 1979) (no respondeat superior liability in Bivens claim against U. S. Parole Commission). Similarly, courts that considered the question prior to Monell also ruled that municipalities cannot be held liable on a respondeat superior theory in Bivens actions. E.g., Turpin v. Mailet, 579 F.2d 152, 166-67 (2d Cir.) (en banc), vacated on other grounds, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978) (for reconsideration in light of Monell); Jamison v. McCurrie, 565 F.2d 483, 485 (7th Cir. 1977); Kostka v. Hogg, 560 F.2d 37, 41-44 (1st Cir. 1977); cf. Nix v. Sweeney," }, { "docid": "12161372", "title": "", "text": "464 (1979); Cale v. City of Covington, 586 F.2d 311 (4th Cir. 1978); Turpin v. Mailet, 579 F.2d 152 (2d Cir.) (en banc), vacated sub nom. City of West Haven v. Turpin, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978), modified on remand, 591 F.2d 426 (2d Cir. 1979) (en banc); Nix v. Sweeney, 573 F.2d 998 (8th Cir. 1978); Jamison v. McCurrie, 565 F.2d 483 (7th Cir. 1977); Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977). But see Dellums v. Powell, 566 F.2d 216 (D.C.Cir. 1977), cert. denied, 438 U.S. 916, 98 S.Ct. 3147, 57 L.Ed.2d 1161 (1978). In Bivens the Supreme Court permitted individuals whose fourth amendment rights had been violated by federal agents to bring a claim for monetary damages against those agents directly under the fourth amendment. Respondeat superior liability was not at issue in Bivens; consequently, the majority opinion did not broach that subject. Nothing in Bivens, as we read it, supports the imposition of respondeat superior liability. In fact, as the district court below noted, both the concurring and dissenting opinions in Bivens clearly indicate that the doctrine of sovereign immunity precluded the plaintiffs in Bivens from recovering against the government for the tortious conduct of its agents, even though such recovery might be desirable as a matter of policy. See n.12, supra. Because Bivens imposed liability only on those actors who were culpable, “to impose liability on a municipality under the theory of respondeat superior would be ‘fundamentally inconsistent with the import of Bivens.’ ” Jones v. City of Memphis, 586 F.2d at 625 (quoting Turpin v. Mailet, 579 F.2d at 166: “Since the sine qua non of Bivens is the imposition of liability upon those actors who can meaningfully be termed ‘culpable,’ it is inappropriate to permit a recovery of damages from those who, by any standard, are innocent of wrongdoing.”). We agree with the First Circuit that, while respondeat superior liability might be sound as a matter of policy, “the Court’s methodology [in Bivens] belies any claim that Bivens should be understood as recognizing sweeping federal judicial power" }, { "docid": "253863", "title": "", "text": "state of knowledge and responsibilities of the named individual defendants and to construct a good faith standard for the city as an entity, taking into account the nature of the legislative and administrative processes and the knowledge of the city’s legislative and executive officers and its legal advisors. Under the circumstances of this case, however, it is unnecessary to delineate these factors precisely, because none of the potentially relevant actors — including city council members, the city attorney, the city manager and the police chief — knew or had reason to know that the city’s Personnel Plan was unconstitutional as applied to the probationary period of police officers. Nor, as stated above, has there been any allegation of malice on the part of any of these actors in promulgating and enforcing the Personnel Plan. Consequently, the city as an entity is not liable in damages for deprivation of the plaintiffs due process rights. B. Recovery in Damages Directly Under the Fourteenth Amendment Following the Second Circuit’s decision that the federal courts had jurisdiction under 28 U.S.C. § 1331(a) to entertain a'suit for damages against a municipality on a cause of action grounded directly on the fourteenth amendment, Turpin v. Mailet, 579 F.2d 152 (2d Cir.), vacated sub nom West Haven v. Turpin, - U.S. -, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978), this court agreed to consider such a cause of action against the City of Montpelier in the present ease. We now hold that a damage remedy against the City of Montpelier should not be implied under the fourteenth amendment. The courts have generally shown great reluctance to exercise the judicial power to create a damage remedy in cases arising directly under the constitution. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court held that an action for damages could be implied against federal officers under the fourth amendment. The lower federal courts have split on the question of whether .similar actions would lie against municipal officers or entities directly under the" }, { "docid": "23473928", "title": "", "text": "amendment with jurisdiction grounded in 28 U.S.C. § 1331. Leite cites this Court’s decision in Panzarella v. Boyle, 406 F.Supp. 787, 794-97 (D.R.I.1975) as authority for this proposition. There has been much doctrinal change since Panzarella, however, and its reasoning has been undermined considerably. The First Circuit refuses to imply a cause of action under the fourteenth amendment for monetary damages against a municipality. Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977). And this Court has followed suit. Lembo v. Rossi, et al. (C.A. # 75-240) (unreported mem. op. 12/20/77). The First Circuit’s Kostka decision did draw support from the fact that Monroe v. Pape prohibited all section 1983 claims against a municipality. The Monell decision, therefore, might alter the Kostka reasoning, but not its result. Because Congress did provide an adequate remedy under the reinterpreted section 1983, there is little reason to imply a constitutional cause of action against municipalities by analogy to Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). In his Monell concurrence, Justice Powell specifically mentioned that little reason now existed for resorting to a Bivens -type cause of action and concluded that “rather than constitutionalize a cause of action against local government that Congress intended to create in 1871, the better course is to confess error and set the record straight, as the Court does today”. Monell, supra 436 U.S. at 713, 98 S.Ct. at 2047. Under Monell, Leite should not premise a cause of action against a municipality directly upon the fourteenth amendment; rather, he should assert a claim under section 1983. Leite has asserted a section 1983 claim recognizable under Monell. Although Leite’s complaint is largely phrased in terms of a respondeat superior claim, he does assert that “the City of Providence is liable to your petitioner in that it was negligent in hiring, training, continuing to employ and/or failing to discipline and/or supervise its employees . . .” Such a claim asserts that official municipal policy was one of the direct causes of the alleged harm. Therefore, the City of Providence is" }, { "docid": "23623950", "title": "", "text": "On remand from the Supreme Court of the United States to reconsider the judgment entered by this Court. City of West Haven v. Turpin, - U.S. -, 99 S.Ct. 554, 58 L.Ed.2d - (1978), vacating 579 F.2d 152 (2d Cir. 1978) (en banc). Judgment reinstated to the extent that it reversed the District Court’s dismissal of the complaint, and cause remanded to the District Court with instructions to permit plaintiff to proceed under 42 U.S.C. § 1983. PER CURIAM: In Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), the Supreme Court overruled Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961), and decided that under certain circumstances, local governments are liable under 42 U.S.C. § 1983 for invasions of constitutional rights. We have been directed to reconsider, in light of Monell, our prior ruling in this case that municipalities may be sued for damages directly under the 14th Amendment. See - U.S. -, 99 S.Ct. 554, 58 L.Ed.2d - (1978), vacating 579 F.2d 152 (2d Cir. 1978) (en banc). The Monell decision does not call into question Turpin’s central thesis that federal courts have the power — and the obligation — under the general federal question jurisdiction to create remedies to redress constitutional grievances. See 579 F.2d at 157-60. An important element in our decision to imply a damages remedy against municipalities under the 14th Amendment, however, was that Congress had not supplied a vehicle by which the right in question could be vindicated. Id. at 157. Monell held that § 1983 suits may be brought against municipalities under conditions essentially coextensive with those we imposed on the private right of action in Turpin. We therefore conclude that — under the very rationale of our prior opinion— there is no place for a cause of action against a municipality directly under the 14th Amendment, because the plaintiff may proceed against the City of West Haven under § 1983. Accordingly, we reinstate so much of our decision as reversed the dismissal of the complaint, and remand to the district" }, { "docid": "18330512", "title": "", "text": "the city of Bridgeport is granted without prejudice and plaintiffs may file an amended complaint, which complies with the guidelines of this decision, within thirty days of the filing of this memorandum. One further matter remains outstanding in this file. First, defendants have filed a motion to strike paragraphs 4 through 10 as being “immaterial, scandalous and evidentiary matters.” Without specifically mentioning the relevant rule, the court assumes that defendants are invoking Fed.R.Civ.P. 12(f), which reads in relevant part: “. . the court may order stricken from any pleading . any redundant, immaterial, impertinent, or scandalous matter.” Such motions are not favored and will not be granted unless it is clear that the allegations in question can have no possible bearing on the subject matter of the litigation. If there is any doubt as to the possibility of relevance, a judge should err on the side of denying a Rule 12(f) motion, especially if the presence of the material at issue does not prejudice the moving party. See generally 2A Moore’s Federal Practice ¶ 12.21[2]. Defendants’ motion to strike is denied as paragraphs 4 through 10 form the basis of plaintiffs’ claim of police brutality and therefore have considerable bearing on the subject matter of the litigation. SO ORDERED. . Just one day prior to the issuance of the Supreme Court’s opinion in Monell, the Second Circuit released its decision in Turpin v. Mailet, 579 F.2d 152 (2d Cir. 1978), in which it extended a cause of action for damages against municipalities for § 1983 violations under the theory enunciated 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 Supreme Court vacated Turpin in light of Monell, 439 U.S. 974, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978) and upon remand, the Second Circuit modified its opinion accordingly, 591 F.2d 426 (2d Cir. 1979). A jury trial was held thereafter at which a verdict of $8,000 was rendered against the city of West Haven. Turpin v. Mailet, Civil No. N-78-181 (D.Conn. Apr. 5, 1979). . A related" }, { "docid": "9875045", "title": "", "text": "concerning the scope of municipal liability for deprivation of civil rights, we would hold that the doctrine of respondeat superior is inapplicable in the present case. The day before Monell was rendered, the Second Circuit, sitting en banc, rejected the application of respondeat superior in fourteenth amendment actions against municipalities. In Turpin v. Mailet, supra, 579 F.2d at 164, the court stated: “The clear intendment of Bivens [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)] is that those directly responsible for unconstitutional behavior may be called to task for their wrongful acts.” The court reasoned that to impose liability on a municipality under the theory of respondeat superior would be “fundamentally inconsistent with the import of Bivens.” 579 F.2d at 166. See also Nix v. Sweeney, 573 F.2d 998, 1003 (8th Cir. 1978); Jamison v. McCurrie, 565 F.2d 483 (7th Cir. 1977); Kostka v. Hogg, supra, 560 F.2d at 43 — 44. But see Dellums v. Powell, 184 U.S.App.D.C. 324, 566 F.2d 216 (1977). Appellee’s cause of action against the City of Memphis is premised solely on the fact that the police officers were employed by the City and were acting within the scope of their employment when they allegedly violated appellee’s constitutional rights. Our holding is that a municipality sued directly under the Constitution and § 1331 cannot be held liable for the constitutional torts of its agents on the basis of respondeat superior under the averments of the complaint in this case. We recognize that the scope of municipal liability enunciated by the Second Circuit in Turpin may not be identical to the extent of municipal liability indicated by the Supreme Court in Monell. We express no views in this opinion as to the “full contours of municipal liability.” Monell, 436 U.S. at 695, 98 S.Ct. 2038. In Monell, the Supreme Court said: “[W]e expressly leave further development of this action to another day.” Id. For the reasons set forth in this opinion, we hold that the City of Memphis cannot be held liable in" }, { "docid": "253864", "title": "", "text": "U.S.C. § 1331(a) to entertain a'suit for damages against a municipality on a cause of action grounded directly on the fourteenth amendment, Turpin v. Mailet, 579 F.2d 152 (2d Cir.), vacated sub nom West Haven v. Turpin, - U.S. -, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978), this court agreed to consider such a cause of action against the City of Montpelier in the present ease. We now hold that a damage remedy against the City of Montpelier should not be implied under the fourteenth amendment. The courts have generally shown great reluctance to exercise the judicial power to create a damage remedy in cases arising directly under the constitution. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Supreme Court held that an action for damages could be implied against federal officers under the fourth amendment. The lower federal courts have split on the question of whether .similar actions would lie against municipal officers or entities directly under the fourteenth amendment. Compare Owen v. City of Independence, 560 F.2d 925 (8th Cir. 1977), vacated 438 U.S. 902, 98 S.Ct. 3118, 57 L.Ed.2d 1145 (1978), and Turpin v. Mailet, 579 F.2d 152 (2d Cir.), vacated sub nom West Haven v. Turpin, - U.S. -, 99 S.Ct. 554, 58 L.Ed.2d 645 (1978), with Kostka v. Hogg, 560 F.2d 37 (1st Cir. 1977). Although not directly deciding the issue, the Supreme Court referred to this question in Monell Justice Powell, concurring, stated: Rather than constitutionalize a cause of action against local government that Congress intended to create in 1871, the better course is to confess error and set the record straight, as the Court does today. 436 U.S. at 713, 98 S.Ct. at 2047 (footnote omitted). The Court subsequently vacated and remanded the Turpin and Owen cases for reconsideration in light of its decision in Monell. 438 U.S. 902, 98 S.Ct. 3118 (1978); - U.S. -, 99 S.Ct. 554 (1978). Upon reconsideration, the Second Circuit concluded that “there is no place for a cause of action against" } ]

[ { "docid": "3649232", "title": "", "text": "novo wrong” review employed in Williams, supra, and HCA supra, appears to conflict with the de novo standard of review articulated in Kirwan which permits the introduction of factual evidence which was not before the claims administrator at the time of its decision to deny benefits. Another district court in this circuit, however, aptly has explained the different meanings of the term “de novo ” employed by the Eleventh Circuit in evaluating ERISA benefits decisions. After describing as “confusing” the Eleventh Circuit’s inclusion of the term “de novo wrong” into the first-step of the HCA supra, analysis, the court in Hawkins v. Arctic Slope Regional Corporation, reconciled HCA supra, and Kirwan, supra, deducing that in this circuit “de novo ” has two different usages in the context of ERISA. See 344 F.Supp.2d 1331, 1335 n. 6 (M.D.Fla.2002). It explained: “When using ‘De novo ’ as a standard of review, courts in this circuit are not limited to the administrative record.” Id. (citing Kirwan, 10 F.3d at 790 and Luby v. Teamsters Health, Welfare, & Pension Trust Funds, 944 F.2d 1176, 1184 (3rd Cir.1991)). “ ‘De novo ’ may also mean that [the] court reviews the denial based upon the administrative record without deference or any presumption of correctness.” Id. “In determining whether a claims administrator’s decision is ‘wrong,’ courts in this circuit may only consider the administrative record.” Id. (citing Lee v. Blue Cross/Blue Shield of Alabama, 10 F.3d 1547, 1550 (11th Cir.1994)). The Hawkins court concluded that “the use of the term de novo in determining whether a claims administrator is ‘wrong,’ apparently means in this circuit that the court reviews the denial without deference or any presumption of correctness based upon the administrative record alone, without considering any extrinsic evidence.” Id.; see also Parness v. Metropolitan Life Ins. Co., 291 F.Supp.2d 1347 (S.D.Fla.) (rejecting insured’s argument that under “de novo wrong” prong of the HCA multi-step “heightened arbitrary and capricious standard of review,” court could consider evidence outside the record, concluding that insured had confused first step of HCA with “the de novo review applied by a court" } ]

[ { "docid": "6755354", "title": "", "text": "evidence beyond the administrative record. II. Analysis A. Standard of Review Under ERISA The scope of discovery in ERISA cases is integrally linked to the standard of review and the admissibility of additional evidence outside of the administrative record. Scott T. Maker and Theodore D. Willard, Discovery In Health Or Disability Actions Governed BY ERISA; Substantive Law and Strategic Considerations, 29 A.B.A SPG Brief 17, 24 (2000). As a threshold matter in ERISA cases, the court must first determine the appropriate standard of review to assess the denial of Plaintiffs claims. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Supreme Court held that the standard of de novo judicial review applies unless the plan vests discretion in the administrator to determine eligibility for benefits or construe plan terms. Id. at 115, 109 S.Ct. 948. However, if a benefit plan gives discretion to an administrator operating under a conflict of interest, that conflict must be weighed as a factor in determining whether there is an abuse of discretion. Id. The Eleventh Circuit subsequently identified three varying standards of review that a court may apply in reviewing a plan administrator’s claims decisions under ERISA: “(1) de novo where the plan does not grant the administrator discretion; (2) arbitrary and capricious [where] the plan grants the administrator discretion; and (3) heightened arbitrary and capricious where there is a conflict of interest.” Buckley v. Metropolitan Life, 115 F.3d 936, 939 (11th Cir.1997); Marecek v. BellSouth Telecommunications, Inc., 49 F.3d 702, 705 (11th Cir.1995). When reviewing a denial of benefits under the de novo standard of review, where the plan does not grant the administrator discretion, the court may examine facts not before the administrator. Kirwan v. Marriott Corp., 10 F.3d 784, 790 n. 31 (11th Cir.1994) (citations omitted) . On the other hand, under the arbitrary and capricious standard, where the plan expressly grants the administrator discretion, the court may consider only the administrative record. Lee v. Blue Cross/Blue Shield, 10 F.3d 1547, 1550 (11th Cir.1994); Jett v. Blue Cross and Blue Shield" }, { "docid": "11587098", "title": "", "text": "at issue does not offer as clear of a statement of discretionary authority as plans addressed in other Eleventh Circuit cases. See, e.g., Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37 (11th Cir.1989) (“full and exclusive authority to determine all questions of coverage and eligibility”); Jett v. Blue Cross and Blue Shield of Alabama, Inc., 890 F.2d 1137 (1989) (“discretionary authority to determine eligibility for benefits [and] to construe [plan’s] terms.”); Brown v. Blue Cross and Blue Shield of Alabama, 898 F.2d 1556 (11th Cir.1990) (“As a condition precedent to coverage, it is agreed that whenever [Blue Cross] makes reasonable determinations which are not arbitrary and capricious in the administration of the [plan] ... such determination shall be final and conclusive.”) However, the Healthsouree Group Subscriber Agreement makes express provisions, similar to the provisions the Eleventh Circuit interpreted as granting discretionary authority to the HMO in Anderson. In light of Anderson, the Court does not find that Kirwan and Moon require that the Court exercise a de novo standard of review of Health-source’s decision to deny coverage. In conducting a review under the arbitrary and capricious standard, the court “must consider whether the insurer’s decision was based on a consideration of the relevant factors and whether there has been a clear error in judgment.” Smith v. Office of Civilian Health, 884 F.Supp. 303, 306 (S.D.Indiana, 1994) (quoting Western & Southern Life Ins. Co. v. Smith, 859 F.2d 407 (6th Cir.1988)). The Court assumes that, as in the normal course of insurance business, the benefits paid to members are paid from Health-source’s premium-generated assets. As under the terms of the Group Subscriber Agreement, Healthsouree makes decisions regarding the benefits to be paid out of its own assets; therefore, the Court finds that there is an inherent conflict of interest. “Decisions made by the issuing company on behalf of a plan based on a contract of insurance ... inherently implicate the hobglobin of self-interest.” Torre v. Federated Mutual Insurance Co., 854 F.Supp. 790, 814 (D.Kansas 1994). This Court will apply a heightened arbitrary and capricious standard. The Eleventh Circuit has" }, { "docid": "22768449", "title": "", "text": "another in which the second period is treated as an independent emergency situation. The district court reviewed the denial of benefits under an arbitrary and capricious standard, consistent with the law in this Circuit at the time of the decision. See, e.g., Hoover v. Blue Cross & Blue Shield of Ala., 855 F.2d 1538, 1541 (11th Cir.1988); Griffis v. Delta Family-Care Disability & Survivorship Plan, 723 F.2d 822, 825 (11th Cir.) (adopting district court opinion), cert. denied, 467 U.S. 1242, 104 S.Ct. 3514, 82 L.Ed.2d 823 (1984). Brown asserts that the Supreme Court’s recent decision of Firestone Tire & Rubber Co. v. Bruch, 489 U.S. -, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), decided after this case was before the district court, requires a de novo standard of review. That case, to the contrary, demonstrates that an arbitrary and capricious standard continues to be applicable here. Although Firestone does not alter in form the standard applied to review of the fiduciary’s decision, the substance of review was subtly altered by the opinion. We examine herein the impact of this change. Our application of the Firestone opinion yields the conclusion that the decision of the district court must be reversed and remanded. SCOPE OF REVIEW Our review of the district court’s grant of summary judgment begins with a brief statement of its scope. Judge Johnson has identified an ambiguity in our prior statements of the scope of review in ERISA benefit denial review cases. See Jett v. Blue Cross & Blue Shield of Ala., 890 F.2d 1137, 1140-41 (11th Cir.1989) (Johnson, J., concurring and dissenting). The issue arises from the statement in Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37 (11th Cir.1989), that “[i]n assessing Guy’s contention that the Fund improperly denied him benefits, therefore, we must determine whether the district court’s finding that the Fund’s decision was arbitrary and capricious is clearly erroneous.” Id. at 39. Read literally, this statement apparently conflicts with our precedents that have uniformly treated the conclusion that an action is arbitrary and capricious as a matter of law subject to de novo review." }, { "docid": "4324775", "title": "", "text": "F.2d 1048, 1052-53 (7th Cir.1987). I can find no other circuit that presently applies a de novo review under the circumstances of this or any similar case. In establishing this de novo standard, the court asserts that it is “informed” by the reasoning of the Eleventh Circuit in Brown v. Blue Cross & Blue Shield, 898 F.2d 1556, 1561 (11th Cir.1990). Ante at 1265. It is somewhat difficult to understand how the court has processed information from Brown since the Eleventh Circuit, .said “[w]e therefore hold that the abuse of discretion, or arbitrary and capricious, standard applies to cases such as this one, but the application of the standard is shaped by the circumstances of the inherent conflict of interest.” Brown, 898 F.2d at 1563. Indeed, the court also stated: While de novo review is an attractive avenue for controlling the exercise of discretion contrary to the interests of the beneficiaries, the application of this strict standard would deny Blue Cross the benefit of the bargain it made in the insuranee contract. Id. In short, Brown does not support the proposition for which it is advanced by the court. Indeed, no case that I have discovered does so. Accordingly, while I concur in the result reached by the court, I disagree with its decision to establish a de novo standard of review for this circuit in this case of first impression. . The conflict in Firestone Tire resulted from Firestone being both the sole source of funding for and the administrator of the ERISA plans at issue while in this case Aetna is both the benefits insurer and the plan administrator. For our purposes in applying Firestone Tire, this is a distinction without a difference. Indeed, since we know nothing of the premium arrangement between Armstrong’s employer and Aetna, it is possible, if not likely, that Firestone had a more intense conflict of interest than does Aetna in this matter." }, { "docid": "3649262", "title": "", "text": "court notes that, although as pointed out by Unum (Unum Br. at 1 n. 1 (Doc. No. 93)), the identity of the defendant has been the source of some confusion, no argument has been made that Unum is not a proper defendant in this case. See e.g., Burchill v. UnumProvident Corp., No. 03-67-P-S, 2003 WL 21524730 (D.Me. June 27, 2003) (agreeing with UnumProvident that insured's \"claim to recover benefits from a policy-funded plan is properly directed toward the actual insurer-administrator, Unum Life”). . In Kirwan, the Eleventh Circuit recognized the split among the circuits as to the scope of the record a court can examine on de novo review. See 10 F.3d at 789 n. 31. The court observes that, presently, the Second, Third, Fourth, Fifth, Seventh, Eighth and Ninth Circuits allow the introduction of evidence outside of the administrative record, but only in specified and limited circumstances. See Hall v. Unum Life Ins. Co. of America, 300 F.3d 1197, 1201-1202 (10th Cir.2002) (collecting cases). . The court notes that, notwithstanding the language in Williams that courts should employ the six-step procedure in “reviewing virtually all ERISA-plan benefit denials,” 373 F.3d at 1137, the court finds that this case in not one which falls within that command given the applicability of the Kirwan de novo standard of review. Rather, based on the foregoing discussion, it appears that “all” refers to all cases where the entity making eligibility determinations is paying claims out of its own operating assets. . The policy contains a 90-day elimination period during which a claimant must be disabled before he or she is eligible for benefits under the policy. (UPCL00057.) The requirement of the completion of the 90-day elimination period accounts for the reason Anderson requests benefits beginning on June 22, 2000. As discussed herein, however, the court finds that the actual date upon which Anderson satisfied the elimination period is June 26, 2000, meaning that she is entitled to benefits beginning on June 27, 2000. . Anderson was approximately six to seven weeks pregnant when Dr. Payne determined on March 29, 2000, that Anderson was" }, { "docid": "3649206", "title": "", "text": "made is the only record which the court can examine and that, under the multi-step analysis set forth by the Eleventh Circuit in Williams, supra, 373 F.3d at 1137, it is entitled to prevail. (Unum Br. (Doc. No. 93).) Anderson, however, contends that the de novo standard of review applies, but that the benefits-denial decision cannot be up held no matter what standard of review is applied. (Anderson Reply at 15 (Doc. No. 90).) As to the scope of review, Anderson contends that regardless of which standard the court applies — de novo, heightened arbitrary and capricious, or arbitrary and capricious — the court is not confined to the administrative record which was before the claims administrator when it denied her claim. (Id. at 8.) 1. The Three Standards of Review Applicable in ERISA Denial-of-Benefits Determinations As recognized by the Eleventh Circuit in Moon v. American Home Assurance Co., the Supreme Court of the United States has established that a court reviews de novo a claim for denial of benefits pursuant to 29 U.S.C. § 1132(a)(1)(B) “ ‘unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.’ ” 888 F.2d 86, 88 (11th Cir.1989) (quoting Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989)). The Eleventh Circuit “has interpreted Bruch to mandate de novo review unless the plan expressly provides the administrator discretionary authority to make eligibility determinations or to construe the plan’s terms.” Kirwan v. Marriott Corp., 10 F.3d 784, 788 (11th Cir.1994). The de novo standard of review “offers the highest scrutiny,” because “no deference” is accorded to the administrator’s decision. Williams, 373 F.3d at 1137. In the Eleventh Circuit, “a district court conducting a de novo review of an Administrator’s benefits determination is not limited to the facts available to the Administrator at the time of the determination.” Kirwan, 10 F.3d at 789. When, however, the administrator has discretionary authority under the plan, the decision to deny benefits is reviewed under the arbitrary and capricious" }, { "docid": "3649234", "title": "", "text": "when the plan administrator is not vested with discretionary authority under which the Court may consider evidence outside the administrative record”), overruled on different grounds by Torres v. Pittston Co., 346 F.3d 1324 (11th Cir.2003). The court agrees with the reasoning of the court in Hawkins. Without recogniz ing a distinction between the meanings of the Eleventh Circuit’s usage of the term “de novo ” in Kirwan and in Williams /HCA, it is impossible to reconcile the holdings of these opinions as to the scope of the record which the court can examine upon de novo review. Having explained why the Williams ’ multi-step review process does not apply in this case, the court now turns to the merits of the case. B. The Merits On the merits, Anderson’s primary argument is that, pursuant to de novo review, the evidence before the court, including Dr. Payne’s deposition testimony, establishes that Anderson was “disabled” within the meaning of the policy from June 22, 2000, to January 3, 2001. Anderson, therefore, contends that Unum’s decision to deny her benefits during this time period was erroneous. Focusing on the alleged lack of evidence as to the inception of Anderson’s “disability,” UNUM complains that Anderson has failed to demonstrate “a level of physical impairment that would have prevented her from performing her occupation at six weeks gestation.” (Unum Br. at 4 (Doc. No. 93).) Under the terms of the policy, Anderson is considered “disabled” only if while insured she became “limited,” because of sickness (i.e., pregnancy-related complications), to “perform! ] the material and substantial duties” of her job as a color sampler, was so limited during her elimination period, and suffered a loss of 20% or more of indexed monthly earnings. (See UPCL00037, UPCL0038, UPCL00039, UPCL00040, UPCL00057, UPCL00069 (Ex. to Doc. No. 93).) The dispute in this case centers on whether Anderson has demonstrated that her pregnancy rendered her unable to perform the material and substantial duties of her job. (See Unum Br. at 9-13 (Doc. No. 93).) The court is cognizant that, in the usual case, pregnancy would not amount to a disability" }, { "docid": "3649205", "title": "", "text": "her] rights under the terms of the plan, or to clarify his [or her] rights to future benefits under the terms of the plan[.]” In this litigation, Anderson bears the burden to prove her entitlement to disability benefits under the policy. Horton v. Reliance Standard Life Ins. Co., 141 F.3d 1038, 1040 (11th Cir. 1998). Three standards of review emerge in ERISA litigation involving § 1132(a)(1)(B) benefits-denial claims: de novo, arbitrary and capricious, and heightened arbitrary and capricious. Williams v. BellSouth Telecommunications, Inc., 373 F.3d 1132, 1134-35 (11th Cir.2004). The parties devote considerable argument to the standard and scope of review to be exercised by the court over the benefits-denial decision in this case. Thus, before proceeding to the merits of Anderson’s claim, it is necessary for the court to resolve these threshold issues. A. Standards of Revieiu: De novo, arbitrary and capricious, heightened arbitrary and capricious; Consideration of Evidence Not Presented to Plan Administrator (Scope of the Record) Unum contends that the administrative record before its claims administrator at the time the decision was made is the only record which the court can examine and that, under the multi-step analysis set forth by the Eleventh Circuit in Williams, supra, 373 F.3d at 1137, it is entitled to prevail. (Unum Br. (Doc. No. 93).) Anderson, however, contends that the de novo standard of review applies, but that the benefits-denial decision cannot be up held no matter what standard of review is applied. (Anderson Reply at 15 (Doc. No. 90).) As to the scope of review, Anderson contends that regardless of which standard the court applies — de novo, heightened arbitrary and capricious, or arbitrary and capricious — the court is not confined to the administrative record which was before the claims administrator when it denied her claim. (Id. at 8.) 1. The Three Standards of Review Applicable in ERISA Denial-of-Benefits Determinations As recognized by the Eleventh Circuit in Moon v. American Home Assurance Co., the Supreme Court of the United States has established that a court reviews de novo a claim for denial of benefits pursuant to 29 U.S.C. §" }, { "docid": "3649226", "title": "", "text": "claims administrator when the decision to deny Anderson’s benefits was made. Namely, in a prior pleading, Unum relied upon Donatelli v. Home Insurance Co., 992 F.2d 763 (8th Cir.1993), in which the Eighth Circuit held that expansion of the factual record upon de novo review should be permitted only in certain demarcated circumstances. (See Unum Mot. for Order Requiring Case to Be Tried on Briefs at 2 n. 1) (Doc. No. 55). As Anderson correctly has pointed out, however, in Kirwan, the Eleventh Circuit did not align itself with the Eighth Circuit. See 10 F.3d at 789 & n. 31. Imposing no restrictions, the Eleventh Circuit held that “a district court conducting a de novo review of an Administrator’s benefits determination is not limited to the facts available to the Administrator at the time of the determination,” but instead can consider evidence regarding an individual’s disability which was in existence at the time the plan administrator’s decision was made, even though this evidence was not made available to the administrator. See id.; see also Shaw v. Connecticut General Life Ins. Co., 353 F.3d 1276, 1284 n. 6 (11th Cir.2003) (“As a rule, de novo review permits the parties to put before the district court evidence beyond that which was presented to the administrator at the time the denial decision was made.”) (citing Moon, 888 F.2d at 89 (“American Home’s contention that a court conducting a de novo review must examine only such facts as were available to the plan administrator at the time of the benefits denial is contrary to the concept of a de novo review.”)); see also Whatley v. CNA Ins. Cos., 189 F.3d 1310 (11th Cir.1999) (applying de novo review). Upon de novo review then, the court is permitted to expand the administrative record to include evidence which was not before the claims administrator when the decision to deny benefits was made. The court, thus, rejects Unum’s reliance on Donatelli as authority for restricting the record which the court can review. Based upon the Eleventh Circuit’s holding in Kirwan, the court finds that it may consider facts" }, { "docid": "4324767", "title": "", "text": "must be weighed as a “factor in determining-whether there is an abuse of discretion.” Restatement (Second) of Trusts § 187, Comment d (1959), quoted in Firestone Tire, 489 U.S. at 115, 109 S.Ct. at 956. We have not addressed the appropriate standard for review where the insurer of a health benefits plan is also the plan administrator. Other circuits have addressed this specific question. In Atwood v. Newmont Gold Company, 45 F.3d 1317, 1323 (9th Cir.1995), and Brown v. Blue Cross & Blue Shield of Alabama, Inc., 898 F.2d 1556, 1566-67 (11th Cir.1990), the Ninth and Eleventh Circuits adopted a “presumptively void” test under which a decision rendered by a plan administrator with such a conflict is presumed to be an abuse of discretion unless the administrator can demonstrate that either (1) under de novo review the result was correct, or (2) the decision was not made to serve the. administrator’s conflicting interest. The Fourth, Fifth, Seventh, and Tenth Circuits use a “sliding scale” approach, under which the reviewing court always applies an abuse-of-discretion standard but decreases the amount of discretion given to the administrator’s decision in proportion to the seriousness of the conflict. See Chambers v. Family Health Plan Corp., 100 F.3d 818, 824-27 (10th Cir.1996); Doe v. Group Hospitalization & Med. Serv., 3 F.3d 80, 87 (4th Cir.1993); Wildbur v. ARCO Chem. Co., 974 F.2d 631, 638-42 (5th Cir.1992); Van Boxel v. Journal Co. Employees’ Pension Trust, 836 F.2d 1048, 1052-53 (7th Cir.1987). We hold that the , circumstances of this case require us to review Aetna’s decision to deny benefits de novo. We are informed by the reasoning of the Eleventh Circuit’s holding in Brown, which stated tiiat a relationship that places an ERISA benefits plan administrator in “perpetual conflict” warrants a higher level of scrutiny. Brown, 898 F.2d at 1561. Aetna faces a continuing conflict in playing the dual role of administrator and insurer of the-health benefits plan. As the insurer, Aetna has an obvious interest in minimizing its claim payments. Apparently to limit claim payments, Aetna provides incentives and bonuses to its claims reviewers based" }, { "docid": "11287958", "title": "", "text": "upon the administrator “full and exclusive authority to determine all questions of coverage and eligibility” and “full power to construe the provision[s]” of the plan. On the other hand, this court has applied the de novo standard when the plan confers upon the administrator the authority to make initial eligibility determinations “according to the terms of the Plan.” ' 10 F.3d at 788 (emphasis in original) (footnotes and some internal quotation marks omitted). If the de novo standard applies, a district court reviewing a benefits determination “is not limited to the facts available to the Administrator at the time of the determination.” Kirwan, 10 F.3d at 789. On the other hand, if the arbitrary and capricious standard applies, “the administrator’s fact-based determinations will not be disturbed if reasonable based on the information known to the administrator at the time the decision was rendered.” Paramore v. Delta Air Lines, Inc., 129 F.3d 1446, 1451 (11th Cir.1997). The arbitrary and capricious standard applies to the administrator’s “construction of the plan and concomitant factual findings[.]” Id. However, if an administrator who has been granted discretion under the plan has a conflict of interest, a “heightened” arbitrary and capricious standard governs. Id. at 1449. Such a conflict of interest exists where a plan is administered by an insurance company which pays benefits out of its own assets. See, e.g., Brown v. Blue Cross & Blue Shield of Ala., Inc., 898 F.2d 1556, 1561-68 (11th Cir.1990). Under this heightened arbitrary and capricious standard, “a wrong but apparently reasonable interpretation is arbitrary and capricious if it advances the conflicting interest of the fiduciary at the expense of the affected beneficiary or beneficiaries unless the fiduciary justifies the interpretation on the ground of its benefit to the class of all participants and beneficiaries.” Godfrey v. BellSouth Telecomms., Inc., 89 F.3d 755, 758 (11th Cir.1996) (quoting Brown, 898 F.2d at 1566-67). This principle is limited by an important precondition: “ ‘[t]he fiduciary’s interpretation first must be ‘wrong’ from the perspective of a de novo review[.]’ ” Godfrey, 89 F.3d at 758 (quoting Brown, 898 F.2d at 1566 n." }, { "docid": "11587097", "title": "", "text": "Blue Cross/Blue Shield of Alabama, 907 F.2d 1072 (11th Cir.1990). In Anderson, the group health contract issued by the HMO gave the HMO the “right to determine which services and supplies are medically necessary ... and to determine the amount to be paid as a ‘reasonable and customary fee’ to physicians performing a service to or a procedure on a member.” Id. at 1076. The district court held that the defendants lacked the discretionary authority envisioned by the Firestone Court and that de novo review was proper. The Eleventh Circuit reversed the district court holding that it had applied an improper standard of review. The Eleventh Circuit held, “the ability to exercise such discretionary powers suffices under Firestone to obtain review for arbitrariness and caprice rather than de novo review.” Id.; accord Mann v. Prudential Ins. Co. of America, 790 F.Supp. 1145, 1150 (S.D.Fla.1992) (noting sufficient discretion where plan required the administrator to make the initial benefit decision and assess whether services and supplies are necessary). The Court notes that the Healthsouree Group Subscriber Agreement at issue does not offer as clear of a statement of discretionary authority as plans addressed in other Eleventh Circuit cases. See, e.g., Guy v. Southeastern Iron Workers’ Welfare Fund, 877 F.2d 37 (11th Cir.1989) (“full and exclusive authority to determine all questions of coverage and eligibility”); Jett v. Blue Cross and Blue Shield of Alabama, Inc., 890 F.2d 1137 (1989) (“discretionary authority to determine eligibility for benefits [and] to construe [plan’s] terms.”); Brown v. Blue Cross and Blue Shield of Alabama, 898 F.2d 1556 (11th Cir.1990) (“As a condition precedent to coverage, it is agreed that whenever [Blue Cross] makes reasonable determinations which are not arbitrary and capricious in the administration of the [plan] ... such determination shall be final and conclusive.”) However, the Healthsouree Group Subscriber Agreement makes express provisions, similar to the provisions the Eleventh Circuit interpreted as granting discretionary authority to the HMO in Anderson. In light of Anderson, the Court does not find that Kirwan and Moon require that the Court exercise a de novo standard of review of Health-source’s" }, { "docid": "3649225", "title": "", "text": "authority to delegate its claims-eligibility decisions to third parties. In sum, the court finds that the undisputed evidence establishes that UnumProvident is the entity which made the benefits-denial decision in Anderson’s case, but that Unum did not have authority under the terms of the policy to delegate its claims-decision responsibilities to UnumProvident. Consequently, UnumProvident does not share the same discretionary authority as Unum to determine eligibility for benefits under Unum’s policies, and, thus, the court finds that the decision to deny Anderson’s claim for benefits is subject to the de novo standard of review. 2. Scope of the Record for Review The court’s conclusion that the de novo standard of review applies does not end the procedural controversy, because the parties also disagree whether, under this standard, the evidentiary scope of the court’s review may include evidence which was not before the claims administrator at the time the decision to deny benefits was made. During the course of these proceedings, Unum has maintained that the court must confine its review to the facts before the claims administrator when the decision to deny Anderson’s benefits was made. Namely, in a prior pleading, Unum relied upon Donatelli v. Home Insurance Co., 992 F.2d 763 (8th Cir.1993), in which the Eighth Circuit held that expansion of the factual record upon de novo review should be permitted only in certain demarcated circumstances. (See Unum Mot. for Order Requiring Case to Be Tried on Briefs at 2 n. 1) (Doc. No. 55). As Anderson correctly has pointed out, however, in Kirwan, the Eleventh Circuit did not align itself with the Eighth Circuit. See 10 F.3d at 789 & n. 31. Imposing no restrictions, the Eleventh Circuit held that “a district court conducting a de novo review of an Administrator’s benefits determination is not limited to the facts available to the Administrator at the time of the determination,” but instead can consider evidence regarding an individual’s disability which was in existence at the time the plan administrator’s decision was made, even though this evidence was not made available to the administrator. See id.; see also Shaw" }, { "docid": "11287959", "title": "", "text": "an administrator who has been granted discretion under the plan has a conflict of interest, a “heightened” arbitrary and capricious standard governs. Id. at 1449. Such a conflict of interest exists where a plan is administered by an insurance company which pays benefits out of its own assets. See, e.g., Brown v. Blue Cross & Blue Shield of Ala., Inc., 898 F.2d 1556, 1561-68 (11th Cir.1990). Under this heightened arbitrary and capricious standard, “a wrong but apparently reasonable interpretation is arbitrary and capricious if it advances the conflicting interest of the fiduciary at the expense of the affected beneficiary or beneficiaries unless the fiduciary justifies the interpretation on the ground of its benefit to the class of all participants and beneficiaries.” Godfrey v. BellSouth Telecomms., Inc., 89 F.3d 755, 758 (11th Cir.1996) (quoting Brown, 898 F.2d at 1566-67). This principle is limited by an important precondition: “ ‘[t]he fiduciary’s interpretation first must be ‘wrong’ from the perspective of a de novo review[.]’ ” Godfrey, 89 F.3d at 758 (quoting Brown, 898 F.2d at 1566 n. 12). In Williams v. BellSouth Telecomms., Inc., 373 F.3d 1132 (11th Cir.2004), the Eleventh Circuit outlined a step-by-step analytical process for evaluating ERISA claims. Under this multi-step approach, a district court must (1) Apply the de novo standard to determine whether the claim administrator’s benefits-denial decision is “wrong” (i.e., the court disagrees with the administrator’s decision); if it is not, then end the inquiry and affirm the decision. (2) If the administrator’s decision in fact is “de novo wrong,” then determine whether he was vested with discretion in reviewing claims; if not, end judicial inquiry and reverse the decision. (3) If the administrator’s decision is “de novo wrong” and he was vested with discretion in reviewing claims, then determine whether “reasonable” grounds supported it (hence, review his decision under the more deferential arbitrary and capricious standard). (4) If no reasonable grounds exist, then end the inquiry and reverse the administrator’s decision; if reasonable grounds do exist, then determine if he operated under a conflict of interest. (5) If there is no conflict, then end the" }, { "docid": "10421746", "title": "", "text": "then benefits decisions should be reviewed under the more deferential arbitrary and capricious standard. Id., 489 U.S. at 115. The United States Court of Appeals for the Fifth Circuit uses “abuse of discretion” instead of “arbitrary and capricious” to describe the deferential alternative to de novo review. Haubold v. Intermedics, Inc., 11 F.3d 1333, 1337 (5th Cir.1994); Wildbur v. ARCO Chemical Company, 974 F.2d 631 (5th Cir.1992). In the instant ease, BellSouth notes that Blue Cross has been delegated complete discretionary authority to interpret the terms and provisions of the MAP and its decisions are conclusive and binding. Therefore, says BellSouth, a deferential standard of review must be applied in the instant case. This court agrees. See Jett v. Blue Cross and Blue Shield of Alabama, 890 F.2d 1137, 1139 (11th Cir.1989) (granting the administrator exclusive right to interpret the provisions of a Plan requires application of a deferential standard). BellSouth also points out that claims are paid out of self-funded MAP trusts, not Blue Cross assets, and that Blue Cross is compensated by the number of claims it processes. Thus, says BellSouth, Blue Cross has no incentive to deny meritorious claims and does not operate under any conflict of interest. See Brown v. Blue Cross & Blue Shield of Alabama, Inc., 898 F.2d 1556 (11th Cir.1990), cert. denied, 498 U.S. 1040, 111 S.Ct. 712, 112 L.Ed.2d 701 (1991) (finding conflict of interest where Blue Cross, acting as administrator of an ERISA Plan, provided insurance coverage to the employer; paid all claims out of its own assets and suffered the losses; and made all eligibility determinations). Again, this court agrees. Where the abuse of discretion standard applies, this court must first determine the legally correct interpretation of the ERISA plan in question by considering whether the interpretation at issue is consistent with a fair reading of the plan; whether there is uniformity in the construction of the plan; and whether the interpretation results in any unanticipated costs to the plan. Jordan v. Cameron Iron Works, Inc., 900 F.2d 53, 56 (5th Cir.), cert. denied, 498 U.S. 939, 111 S.Ct. 344," }, { "docid": "6755355", "title": "", "text": "abuse of discretion. Id. The Eleventh Circuit subsequently identified three varying standards of review that a court may apply in reviewing a plan administrator’s claims decisions under ERISA: “(1) de novo where the plan does not grant the administrator discretion; (2) arbitrary and capricious [where] the plan grants the administrator discretion; and (3) heightened arbitrary and capricious where there is a conflict of interest.” Buckley v. Metropolitan Life, 115 F.3d 936, 939 (11th Cir.1997); Marecek v. BellSouth Telecommunications, Inc., 49 F.3d 702, 705 (11th Cir.1995). When reviewing a denial of benefits under the de novo standard of review, where the plan does not grant the administrator discretion, the court may examine facts not before the administrator. Kirwan v. Marriott Corp., 10 F.3d 784, 790 n. 31 (11th Cir.1994) (citations omitted) . On the other hand, under the arbitrary and capricious standard, where the plan expressly grants the administrator discretion, the court may consider only the administrative record. Lee v. Blue Cross/Blue Shield, 10 F.3d 1547, 1550 (11th Cir.1994); Jett v. Blue Cross and Blue Shield of Alabama, Inc., 890 F.2d 1137, 1139 (11th Cir.1989). Plaintiff argues that under the analysis set forth in HCA Health Servs. of Ga. v. Employers Health Ins. Co. 240 F.3d 982, 995 (11th Cir.2001) the court may examine facts outside of the administrative record under the heightened arbitrary and capricious standard. The Eleventh Circuit in HCA described the process a court should follow in reviewing benefits determinations of claims administrators in ERISA cases. Id. at 993. First, the court must look at the plan documents to determine whether the claims administrator is given discretion. Id. at 993. If the plan does not expressly vest discretion in the administrator, the administrator’s decision is not afforded deference. The proper standard is de novo review which includes consideration of facts not before the claims administrator. See Kirwan, 10 F.3d at 789-790 and n. 31(eitations omitted). If the court finds that the plan grants discretion to the claims administrator, regardless of whether the arbitrary and capricious standard or the heightened arbi trary and capricious standard applies, the court next" }, { "docid": "23432609", "title": "", "text": "Cir.1991). Where the administrator of an ERISA benefits plan has discretionary authority to determine eligibility for benefits, a court reviews that determination under the arbitrary and capricious standard. Brown v. Blue Cross and Blue Shield of Alabama, 898 F.2d 1556, 1559 (11th Cir.1990). However, such a determination is not entitled to as much deference where the administrator has a conflict of interest. Id. at 1566. [A] wrong but apparently reasonable interpretation is arbitrary and capricious if it advances the conflicting interest of the fiduciary at the expense of the affected beneficiary or beneficiaries unless the fiduciary justifies the interpretation on the ground of its benefit to the class of all participants and beneficiaries. Id. At 1566-67. [T]he fiduciary’s interpretation first must be “wrong” from the perspective of a de novo review ... Id. at 1566, n. 12. III. ANALYSIS A. The District Court did not err when it found that Godfrey was denied benefits under the Sickness and Accident Disability Plan in violation of ERISA Sections 502(a)(1)(B) and (a)(3), 29 U.S.C. § 1132(a)(1)(B) and § 1132(a)(3). Using the test outlined above, we review the decision in this case under the arbitrary and capricious standard. Brown, 898 F.2d at 1559. However, such a determination is not entitled to as much deference if the administrator had a conflict of interest. Brown, 898 F.2d at 1566. In such a case, we first conduct a de novo review to decide if the determination was wrong. Id. BST argues that there was no conflict of interest, even though BST self-administered the plan and paid benefits from its operating expenses. According to BST, it would have had to pay Godfrey regardless of the determination by the plan administrator;. either it would have paid Godfrey benefits or it would have paid her wages. In addition, according to BST, it did not save the cost of a replacement worker because it did not hire a replacement worker when Godfrey was out, and it might not have hired one if she had been granted benefits. However, if BST granted benefits to Godfrey, it would have either had to hire" }, { "docid": "22132093", "title": "", "text": "Blue Shield, 890 F.2d 1137, 1139 (11th Cir.1989) (stating that the arbitrary and capricious standard is used interchangeably with an abuse of discretion standard). . See supra Part VII.A.5. . \"Wrong” is the label used by our precedent to describe the conclusion a court reaches when, after reviewing the plan documents and disputed terms de novo, the court disagrees with the claims administrator’s plan interpretation. See Yochum v. Barnett Banks, Inc., 234 F.3d 541 (11th Cir.2000); see also Marecek v. BellSouth Telecommunications, Inc. 49 F.3d 702, 705 (explaining a court must decide if the administrator correctly interpreted the plan). Brown is the seminal Eleventh Circuit case on the standard by which to review a claims administrator’s decision. In Brown, the court states “the fiduciary’s interpretation first must be 'wrong.' ” Brown, 898 F.2d at 1566 n. 12. The Brown court supports this statement with the following citation and explanatory parenthetical: “See, e.g., Denton v. First Nat’l Bank of Waco, 765 F.2d 1295, 1304 (5th Cir.1985) (first step in application of arbitrary and capricious standard is determining legally correct interpretation of disputed plan provision), cited with approval in Jett v. Blue Cross & Blue Shield, 890 F.2d 1137, 1139 (11th Cir.1989).\" Thus began the Eleventh Circuit’s use of the word \"wrong.” See Lee v. Blue Cross/Blue Shield, 10 F.3d 1547, 1551 n. 3 (11th Cir.1994) (stating \"Brown instructs us to review de novo whether the insurer’s interpretation of the plan is wrong”); see also Florence Nightingale Nursing Serv., Inc. v. Blue Cross/Blue Shield, 41 F.3d 1476, 1481 (11th Cir.1995). . When a plan is ambiguous, the principle of contra proferentem requires that ambiguities be construed against the drafter of a document; as such, the claimant’s interpretation is viewed as correct. Lee, 10 F.3d at 1551. In Lee, 10 F.3d at 1551, and Florence Nightingale, 41 F.3d at 1481 n. 4, this court held that contra proferentem applies to ERISA plans. . See Firestone, 489 U.S. at 110, 109 S.Ct. at 954 (explaining that trust principles are applicable to ERISA fiduciaries). . \"Shared savings agreements” is the term of art EHI uses" }, { "docid": "3649233", "title": "", "text": "Trust Funds, 944 F.2d 1176, 1184 (3rd Cir.1991)). “ ‘De novo ’ may also mean that [the] court reviews the denial based upon the administrative record without deference or any presumption of correctness.” Id. “In determining whether a claims administrator’s decision is ‘wrong,’ courts in this circuit may only consider the administrative record.” Id. (citing Lee v. Blue Cross/Blue Shield of Alabama, 10 F.3d 1547, 1550 (11th Cir.1994)). The Hawkins court concluded that “the use of the term de novo in determining whether a claims administrator is ‘wrong,’ apparently means in this circuit that the court reviews the denial without deference or any presumption of correctness based upon the administrative record alone, without considering any extrinsic evidence.” Id.; see also Parness v. Metropolitan Life Ins. Co., 291 F.Supp.2d 1347 (S.D.Fla.) (rejecting insured’s argument that under “de novo wrong” prong of the HCA multi-step “heightened arbitrary and capricious standard of review,” court could consider evidence outside the record, concluding that insured had confused first step of HCA with “the de novo review applied by a court when the plan administrator is not vested with discretionary authority under which the Court may consider evidence outside the administrative record”), overruled on different grounds by Torres v. Pittston Co., 346 F.3d 1324 (11th Cir.2003). The court agrees with the reasoning of the court in Hawkins. Without recogniz ing a distinction between the meanings of the Eleventh Circuit’s usage of the term “de novo ” in Kirwan and in Williams /HCA, it is impossible to reconcile the holdings of these opinions as to the scope of the record which the court can examine upon de novo review. Having explained why the Williams ’ multi-step review process does not apply in this case, the court now turns to the merits of the case. B. The Merits On the merits, Anderson’s primary argument is that, pursuant to de novo review, the evidence before the court, including Dr. Payne’s deposition testimony, establishes that Anderson was “disabled” within the meaning of the policy from June 22, 2000, to January 3, 2001. Anderson, therefore, contends that Unum’s decision to deny" }, { "docid": "6755365", "title": "", "text": "and is commonly called the sliding scale approach. Ñola A. Kohler, An Overview Of The Inconsistency Among The Circuits Concerning The Conflict Of Interest Analysis Applied In An ERISA Action With An Emphasis On The Eighth Circuit's Adoption Of The Sliding Scale Analysis In Woo v. Deluxe Corp., 75 N.D. L.Rev. 815, 832 (1999). In contrast, the approach dictated by the Eleventh Circuit is the presumptively void test or a burden shifting approach which is derived from the common law of trusts. Kohler, supra 75 N.D. L.Rev. at 853. See e.g. Brown v. Blue Cross and Blue Shield of Alabama, Inc., 898 F.2d 1556, 1566-1568 (11th Cir.1990). See also Pinto v. Reliance Standard Ins. Co., 214 F.3d 377, 391-92 (3rd Cir.2000)(discussing the approaches of the circuits, including the sliding scale approach and the burden shifting approach, and how the circuits deferentially review a conflicted claims administrator's decision). The \"heightened arbitrary and capricious standard\" in this circuit applies to whether the conflict of interest tainted the administrator’s decision. Under this approach, as will be more specifically set forth above in this court's discussion of HCA Health Servs. of Ga. v. Employers Health Ins. Co. 240 F.3d 982, 995 (11th Cir.2001), a court reviewing a claims administrator’s decision either affords the decision deference and reviews it for an abuse of discretion or without deference and reviews it de novo. If the Plan confers discretion on the administrator but the administrator suffers from a conflict of interest, the burden shifts to the administrator to prove that its interpretation was not tainted by self interest. If the administrator meets this burden, the decision will not be reversed if reasonable and therefore it is afforded deference. If the administrator does not meet this burden, the administrator’s decision is reviewed without deference. . While the Eleventh Circuit permits the presentation of evidence outside of the administrative record when the de novo standard of review applies, certain other circuits do not. Maker and Willard, supra 29 A.B.A. SPG Brief 17 at 26. See Kirwan, 10 F.3d at 790 n. 31 (noting split of authority on issue). See" } ]

[ { "docid": "1188452", "title": "", "text": "L.Ed.2d 1 (1994). However, because he filed his petition for grant of review while that case was sub judice, we will grant his petition for review. See United States v. Rice, 36 MJ 264 (CMA 1993). Appellant’s personal assertion of error is troublesome. He claims that he was locked in his cell for 40 days; he went 8 days without a shower; he went 2 weeks without clean bed linens; he could not wash his clothing; he had no water at all for 5 days; he could not wash or even flush his toilet; he was served “cold sack lunches” containing partially cooked food and spoiled fruit; and, during the 40-day period, he was denied access to the trial defense service. However, appellant’s constitutional claim of cruel and unusual punishment is not ripe for review under Article 67(a), Uniform Code of Military Justice, 10 USC § 867(a)(1989). While Article 55, UCMJ, 10 USC § 855, prohibits such punishment, and under appropriate conditions we might exercise our power to issue an extraordinary writ, a prisoner must seek administrative relief prior to invoking judicial intervention. In this regard appellant must show us, absent some unusual or egregious circumstance, that he has exhausted the prisoner grievance system of the Disciplinary Barracks and that he has petitioned for relief under Article 138, UCMJ, 10 USC § 938. Cf. Walker v. United States, 19 USCMA 247, 41 CMR 247 (1970). For these reasons we reject appellant’s personally assigned error at this time. On a proper showing that he has exhausted his administrative remedies, he is free to invoke the All Writs Act at the Court of Military Review to determine the relief, if any, to which he may be entitled. If not satisfied at that level, he may once more present his claims to us. Dettinger v. United States, 7 MJ 216 (CMA 1979). The petition for review is granted as to the issue raised by appellate defense counsel but denied as to those matters personally raised by appellant. The decision of the United States Army Court of Military Review is affirmed. . That issue" } ]

[ { "docid": "1877861", "title": "", "text": "United States v. Kinsch, 54 M.J. 641 (Army Ct.Crim. App.2000). We are not entirely persuaded as to the merits of appellant’s allegations. However, because of the limitations placed upon our fact-finding power by United States v. Ginn, 47 M.J. 236, 248 (1997), and as a matter of judicial economy, we will exercise our “broad power to moot claims of prejudice” by granting appellant sentence relief rather than order a DuBay hearing as requested by the government in its brief. United States v. Wheelus, 49 M.J. 283, 288 (1998). Facts The following facts are not in dispute. On 21 June 2000, appellant was convicted at a special court-martial of fourteen specifications involving illegal drugs and a nine-day absence without leave. For these crimes he was sentenced to forty-five days confinement, a bad-conduct discharge, forfeiture of $670 pay per month for six months, and reduction to Private El. After serving his confinement at USACFE, appellant was released on 28 July 2000 and began the process of preparing to leave Germany on involuntary excess leave. Before completing his outprocessing, appellant committed additional drug offenses, which along with previously committed larceny and forgery offenses, were prosecuted in this second court-martial. On 12 October 2000, appellant was tried and sentenced in this case and again confined at USACFE. Two weeks later, on 27 October 2000, this court issued its decision in Kinsch, finding that appellant Kinsch suffered cruel and unusual punishment at the hands of a particular USACFE guard (SGT D) who, “under the pretense of conducting a ‘pat down,’ maliciously and sadistically struck appellant [Kinsch] in his testicles several times with the intent of unnecessarily and wantonly causing appellant physical and mental pain.” Kinsch, 54 M.J. at 648. On 29 January 2001, appellant was transferred to the Regional Confinement Facility at Fort Knox, Kentucky, to finish serving his approved sentence. On 29 October 2001, appellant executed an affidavit, remarkably similar to the multiple affidavits executed over one year earlier by other USACFE inmates and submitted in Kinsch. In his affidavit, appellant asserted that during his second period of confinement at USACFE, the same SGT" }, { "docid": "15053018", "title": "", "text": "United States either by tailored application of the All Writs Act, 28 U.S.C. § 1651 (1982), or by issuance of a declaratory judgment, see 28 U.S.C. § 2201 (1976). . Article 55, UCMJ, provides: \"Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.” . To the extent that Article 55 specifically prohibits the use of certain archaic types of punishment and prohibits the use of irons except for safe custody purposes, its scope is broader on its face than the eighth amendment. Wappler appears to extend the scope of Article 55 even further to prohibit a court-martial from adjudging certain military punishments not expressly proscribed in the text of Article 55 which the Court speculates would not be prohibited under the eighth amendment. . There is no magical incantation hidden in the language of Article 55; it was patterned after the forty-first Article of War and was enacted to take \"us out of the dark ages.” Index and Legislative History, Uniform Code of Military Justice, page 1087 (U.S. Government Printing Office, 1950). . AR 190-47 contains detailed policy guidance for confinement and correctional facility per sonnel and establishes guidelines designed to protect the health, safety, and welfare of administratively restricted prisoners. See, e.g., paragraphs 9-7, 9-8, and 9-11, AR 190-47. These procedures also provide for the visits of restricted prisoners by professionals such as custodial staff personnel, chaplains, and medical officers or physicians’ assistants. A record of such visits and observations must be maintained on DD Form 509. . Even if the policy established by Army regulation is thought to be unwise, this alone will not justify judicial circumvention of the policy, absent proof that there is no reasonable basis therefor. The appellant must, consequently, establish that such a policy is arbitrary and capricious. Cf. United States v. Eliason, 16 Pet. 291, 41 U.S. 291, 301, 10 L.Ed." }, { "docid": "7339431", "title": "", "text": "of assigned military counsel, a “merits” pleading was filed by military counsel with the Army court. The Army court affirmed Adams’ conviction in a per curiam decision and later denied an untimely motion for reconsideration. Adams petitioned this Court for relief and we granted review of the following issue: WHETHER APPELLANT’S APPELLATE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL. We find that Adams has failed to meet the prejudice component of the ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and therefore affirm the Army Court of Criminal Appeals. BACKGROUND After his trial Adams retained the services of a civilian defense counsel, Mr. Cassara, to represent him before the convening authority. Mr. Cassara submitted matters pursuant to Rule for Courts-Martial 1105 [R.C.M.] in which he challenged the military judge’s ruling admitting Adams’ pretrial statement to criminal investigators. Despite this effort, the convening authority approved the adjudged sentence. Adams’ record of trial was subsequently forwarded to the Army Court of Criminal Appeals for review pursuant to Article 66(c), UCMJ, 10 U.S.C. § 866(c) (2000). Captain Maher was initially detailed as Adams’ appellate defense counsel. Through discussions with Adams, Captain Maher became aware that Mr. Cassara would serve as civilian appellate defense counsel before the Court of Criminal Appeals. See Article 70(d), UCMJ, 10 U.S.C. § 870(d) (2000). Captain Maher communicated with Mr. Cassara by electronic mail and received a response from Mr. Cassara confirming that he would represent Adams before the Army court. Mr. Cassara did not, however, file any notice of appearance with the Court of Criminal Appeals. Captain Maher continued to represent Adams until he left active duty and during that time he filed three motions requesting extensions of time in which to file a brief at the Army court. The motions did not indicate that Adams was also represented by civilian counsel. The relationship between the civilian and military counsel at this point was summarized in Adams’ appellate brief: Apparently Mr. Cassara was still working behind the scenes during this timeframe. According to Mr. Cassara," }, { "docid": "7348566", "title": "", "text": "certified the case to this Court for review of the following issues : I. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING THAT THE SIX PRINCIPLES LAID OUT IN UNITED STATES V. GINN, 47 M.J. 236 (1997), PROVIDE THE PROPER DECISIONAL FRAMEWORK FOR ANALYZING ANY ISSUE RAISED IN A POST-TRIAL AFFIDAVIT, INCLUDING ISSUES RAISED UNDER UNITED STATES V. GROSTEFON, 12 M.J. 431 (C.M.A.1982)? II. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING THAT THIS COURT’S DECISION IN UNITED STATES V. GINN, 47 M.J. 236 (1997), PRECLUDED THAT COURT FROM CONSIDERING THE GOVERNMENT AFFIDAVITS THAT FACTUALLY CONFLICTED WITH APPELLANT’S POST-TRIAL AFFIDAVITS AND FROM RESOLVING THE ISSUE IN THE GOVERNMENT’S FAVOR WITHOUT ORDERING A HEARING PURSUANT TO THIS COURT’S DECISION IN UNITED STATES V. DUBAY, 17 U.S.C.M.A. 147, 37 C.M.R. 411, 1967 WL 4276 (1967)? III. WHETHER THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS ERRED IN CONCLUDING THAT IT HAD THE AUTHORITY TO GRANT APPROPRIATE RELIEF UNDER THIS COURT’S DECISION IN UNITED STATES V. WHEELUS, 49 M.J. 283 (1998), WHEN THE COURT ADMITTED GOVERNMENT AFFIDAVITS SPECIFICALLY REBUTTING APPELLANT’S POST-TRIAL AFFIDAVITS THAT MADE FACTUAL ASSERTIONS OF CRUEL AND UNUSUAL PUNISHMENT? We hold that the Court of Criminal Appeals properly identified and applied United States v. Ginn, 47 M.J. 236 (C.A.A.F.1997) as the decisional framework for addressing Fagan’s claim of cruel and unusual punishment. We further hold that the Court of Criminal Appeals erred in granting sentence relief to Fagan in lieu of ordering further proceedings under United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). BACKGROUND At the conclusion of his trial in October of 2000, Fagan began serving his confinement at the United States Army Confinement Facility, Europe (USACFE) in Mannheim, Germany. In January of 2001, he was transferred from USACFE to the Regional Confinement Facility at Fort Knox, Kentucky, to finish serving the balance of his sentence. As part of his appeal to the Court of Criminal Appeals, Fagan asserted that, while confined at USACFE, he had been subjected to cruel and unusual punishment in violation of the Eighth Amendment" }, { "docid": "7339430", "title": "", "text": "Judge ERDMANN delivered the opinion of the Court. Specialist Brian P. Adams was tried by a military judge sitting as a general court-martial. He was charged with rape and adultery in violation of Articles 120 and 134, Uniform Code of Military Justice [UCMJ], 10 U.S.C. §§ 920, 934 (2000), respectively. He entered pleas of not guilty to the adultery charge and guilty to the lesser-included offense of attempted rape in violation of Article 80, UCMJ, 10 U.S.C. § 880 (2000). He was found guilty of both adultery and rape. His adjudged and approved sentence included a bad-conduct discharge, confinement for 14 months, total forfeitures, and reduction to the lowest enlisted grade. Following the trial, Adams retained a civilian attorney to represent him in the post-trial process. Although the civilian attorney actively represented him before the convening authority, a brief prepared by the civilian counsel for filing with the Army Court of Criminal Appeals was never received by the Army Defense Appellate Division and was never filed. Following a number of continuance requests by a series of assigned military counsel, a “merits” pleading was filed by military counsel with the Army court. The Army court affirmed Adams’ conviction in a per curiam decision and later denied an untimely motion for reconsideration. Adams petitioned this Court for relief and we granted review of the following issue: WHETHER APPELLANT’S APPELLATE DEFENSE COUNSEL PROVIDED INEFFECTIVE ASSISTANCE OF COUNSEL. We find that Adams has failed to meet the prejudice component of the ineffective assistance of counsel test set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and therefore affirm the Army Court of Criminal Appeals. BACKGROUND After his trial Adams retained the services of a civilian defense counsel, Mr. Cassara, to represent him before the convening authority. Mr. Cassara submitted matters pursuant to Rule for Courts-Martial 1105 [R.C.M.] in which he challenged the military judge’s ruling admitting Adams’ pretrial statement to criminal investigators. Despite this effort, the convening authority approved the adjudged sentence. Adams’ record of trial was subsequently forwarded to the Army Court of Criminal Appeals for" }, { "docid": "13528824", "title": "", "text": "by her prison guards. See generally Walker v. United States, 19 USCMA 247, 251, 41 CMR 247, 251 (1970) (Court of Military Review may take violations of law concerning conditions of confinement during appellate review into account in its determination of an appropriate sentence); see also United States v. Miller, 46 MJ 248, 250 (1997). The Supreme Court’s decision in Clinton v. Goldsmith, 526 U.S. 529, 119 S.Ct. 1538, 143 L.Ed.2d 720 (1999), does not render military appellate courts impotent in this regard. In my view, Article 55, UCMJ, makes unlawful post-trial punishment a matter of law related to “the review of specified sentences imposed by courts-martial” under Articles 66 and 67, UCMJ, 10 USC §§ 866 and 867. Id. at 534, 119 S.Ct. 1538; see also Article 71(c)(2), UCMJ, 10 USC § 871(e)(2) (execution of sentence). Article 55, UCMJ, expressly authorizes more than review of sentences adjudged by a court-martial. It states: . § 855. Art. 55. Cruel and unusual punishments prohibited Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited. (Emphasis added.) Sexual harassment is not a lawful punishment under our Code, nor was it adjudged as punishment by appellant’s court-martial. The “infliction” of such punishment on a military prisoner by prison guards, over and above that adjudged by the court-martial, is unquestionably a matter of codal concern. See Clinton v. Goldsmith, supra at 536, 119 S.Ct. 1538 (“It would presumably be an entirely different matter if a military authority attempted to alter a judgment by revising a court-martial finding and sentence to increase the punishment, contrary to specific provisions of the UCMJ....”). The federal district courts remain open for the military prisoners to present claims for injunctive, declaratory, or habeas relief based on unlawful post-trial confinement conditions. See Walden v. Bartlett, 840 F.2d 771, 775 (10th Cir.1988), and Marrie v. Nickels, 70 F.Supp.2d 1252, 1259-60" }, { "docid": "14965406", "title": "", "text": "even in the absence of oral argument before the United States Army Court of Military Review. The verbatim record of appellant’s trial proceedings consisted of 54 pages. Included were the presentencing proceedings of the trial reflecting appellant’s service record. In extenuation and mitigation, appellant testified under oath about his enjoyment of the Army, his desire to remain in the service, and his family circumstances surrounding a three-day absence. Defense counsel made an argument on sentence covering four pages of the record. This record, with all accompanying exhibits, was provided to the Court of Military Review for review pursuant to Article 66, UCMJ, 10 U.S.C. § 866. Also available was a petition for clemency in the allied papers submitted to the convening authority which resulted in suspension of the unserved portion of adjudged confinement. A panel of the United States Army Court of Military Review declined unanimously to hear oral argument on the issue of sentence appropriateness after briefs on the issue had been submitted. For many years under the Court of Military Review rules, oral argument was a matter of right. The new Rule 17a, Courts of Military Review Rules of Practice and Procedure (1980), however, states: Oral argument may be heard in the discretion of the Court upon motion by either counsel or upon order by the Court after briefs have been filed in accordance with Rule 16. Motion for oral argument shall be made at the time pleadings are filed or within 5 days after the Government files its reply. 10 M.J. LXXXV. We conclude that this permissive rule does not violate a fundamental right of appellant. A unique sentencing power is vested in the Courts of Military Review under Article 66. However, this Court does not review the exercise of this power except where errors of law occur. United States v. Snelling, 14 M.J. 267 (C.M.A. 1982). This conclusion does not disturb our decision in United States v. Larneard, 3 M.J. 76 (C.M.A. 1977). There we recognized that a military criminal appeal is a “creature ... solely of statutory origin,” conferred neither by the Constitution nor the" }, { "docid": "12075692", "title": "", "text": "aggravating factors found by the court-martial. We find that each aggravating factor in this case, standing alone, is sufficient to authorize the death penalty. We also find that any extenuating and mitigating circumstances are substantially outweighed by the aggravating circumstances. We conclude that the sentence is appropriate for the crimes of which the accused stands convicted. Pursuant to United States v. Grostefon, 12 M.J. 431 (C.M.A.1982), we have also considered the personal assertions of the appellant and find them to be without merit. For the foregoing reasons, the Petition for New Trial is denied. The findings of guilty and the sentence are affirmed. Judge GRAVELLE and Judge JOHNSTON concur. APPENDIX UNITED STATES ARMY COURT OF MILITARY REVIEW Before NAUGHTON, HOWELL, and JOHNSTON Appellate Military Judges UNITED STATES, Appellee v. Specialist Four RONALD GRAY, [ XXX-XX-XXXX ], United States Army, Appellant ACMR 8800807 ORDER WHEREAS, this case is currently scheduled for oral argument before the United States Army Court of Military Review, Panel 4, on 13 November 1991 at 0900 hours; and WHEREAS, the pleadings in this case have been before this Court for the past fifteen months (July 1990) and oral argument has been scheduled at various times since 5 December 1990; and WHEREAS, on 27 December 1990, the appellant filed a petition (motion) before this Court requesting that the Government provide the appellant with $15,000.00 to be used by appellate defense counsel to retain a mental health expert, an attorney qualified under the standards of the American Bar Association to represent defendants in capital cases, and a qualified investigator to assist with appellant’s appeals; and WHEREAS, this Court denied that petition on 12 March 1991 (United States v. Gray, 32 M.J. 730 (A.C.M.R.1991)); and WHEREAS, this Court previously determined that appellant’s counsel was “qualified” within the meaning of Articles 27 and 70, Uniform Code of Military Justice, 10 U.S.C. §§ 827, 870, as well having satisfied the Alternate Procedures of the American Bar Association Guidelines for the Appointment and Performance of Counsel in Death Penalty Cases (United States v. Gray, 32 M.J. at 734); and WHEREAS, this Court has" }, { "docid": "3853908", "title": "", "text": "60 M.J. at 84 (emphasis added). . Article 120(a), UCMJ, 10 U.S.C. § 920(a) (2000); see also Article 118, UCMJ, 10 U.S.C. § 918 (2000). . 60 M.J. at 84. . See Article 56, UCMJ; see also Article 18, UCMJ, 10 U.S.C. § 818 (2000) (establishing jurisdiction of general courts-martial to adjudge punishment “under such limitations as the President may prescribe”). . 60 MJ. at 85. . MCM (2002 ed.), pt. IV, K45.e.(l). . See Ronghi, 60 MJ. at 85. . Exec. Order 13,262 § 6.b, 67 Fed.Reg. 18,773, 18,779 (Apr. 11, 2000). . Ronghi, 60 M.J. at 85 (emphasis omitted). . See Coker v. Georgia, 433 U.S. 584, 599, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). . Id. at 592, 97 S.Ct. 2861. . Willenbring v. Neurauter, 48 MJ. 152, 180 (C.A.A.F.1998). . Id. at 178 (internal quotation marks and citations omitted). . R.C.M. 1003(b)(3) discussion (emphasis added). . R.C.M. 1003(a). . R.C.M. 1003(b)(3). . MCM (1949 ed.), 11117c, § B (emphasis added). . William Winthrop, Military Law and Precedents 419 (2d ed.1920)[hereinafter Winthrop], . MCM, U.S. Army (1921 ed.), H 317. . MCM, U.S. Army (1928 ed.), II 103g. . MCM, U.S. Army (1949 ed.), 1117c, § B; MCM, U.S. Air Force (1949 ed.), 1117c, § B. . See, e.g., War Department Technical Manual 27-255, Military Justice Procedure 1125b (1945) (asserting that \"[fjines should not be imposed on military personnel ..., except perhaps in the case of aggravated embezzlements or other frauds by a disbursing officer, for instance, where a large sum is necessary to make good the defalcation\"); Seminars on the 1949 Manual for Courts-Martial 96 (Dec.1948), microformed on OCLC No. 31272962 88-026, at F2/2 (Law Library Microform Consortium) (noting that although \"a fine may be adjudged against any enlisted person, in lieu of forfeitures, for any offense listed in the Table of Maximum Punishments, ... [tjhose provisions [regarding unjust enrichment] were inserted as authority for the imposition of a fine in lieu of forfeitures in the case, for example, of embezzlement by a finance officer or in the case of black marketeering”); Colonel Charles L. Decker," }, { "docid": "1877166", "title": "", "text": "take corrective action with respect to the Article 55 violation, or remand the case for such action by a convening authority. IV. DECISION The decision of the United States Army Court of Criminal Appeals is affirmed as to findings and set aside as to sentence. The record is returned to the Judge Advocate General of the Army for remand to the Court of Criminal Appeals for further proceedings consistent with this opinion. CRAWFORD, Chief Judge (dissenting): There is a significant difference between punishment inflicted by a prison official, and independent criminal acts committed by one rogue prison guard. Appellant was a victim of the latter. The offending guard in this case — 1st Class Petty Officer (E-6) — committed a criminal act of his own volition, which the prison’s supervising official, a commissioned officer (0-4), handled appropriately. Upon learning of the guard’s misconduct through Appellant’s complaint, the supervising official immediately initiated a criminal investigation, during which the Criminal Investigation Command (CID) titled the guard for indecently assaulting Appellant and at least several others. This prompt and reasonable response on the part of the Major Lynch should be the focus of this Court’s analysis, and not the independent criminal actions of one rogue prison guard. It is on these grounds that I respectfully dissent. “Generally, this Court looks to federal case law interpreting the Eighth Amendment to decide claims of an Article 55 violation.” United States v. Smith, 56 M.J. 290, 292 (C.A.A.F.2002)(citing United States v. Avila, 53 M.J. 99, 101 (C.A.A.F.2000)). Accordingly, I consider Appellant’s “claims of an Eighth Amendment violation and Article 55 violation together.” Id. The Supreme Court has been clear that “[t]he Eighth Amendment does not outlaw cruel and unusual ‘conditions’; it outlaws cruel and unusual ‘punishments.’ ” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994). “ ‘The infliction of punishment is a deliberate act intended to chastise or deter.’ ” Wilson v. Seiter, 501 U.S. 294, 300, 111 S.Ct. 2321, 115 L.Ed.2d 271 (1991)(quoting Duckworth v. Franzen, 780 F.2d 645, 652 (7th Cir.1985)). Accordingly, “[t]he thread common to all [Eighth" }, { "docid": "7318965", "title": "", "text": "brain. She spent five days in the hospital and suffered for weeks from frequent headaches and dizzy spells. Prior to trial, appellant made two separate, false written statements to law enforcement, as follows: (1) he denied committing sodomy upon his stepdaughter, and (2) he claimed that he accidentally struck his wife with the beer bottle. At trial, appellant’s trial defense counsel told the military judge that there were no issues regarding Article 13, UCMJ, 10 U.S.C. § 813, pretrial punishment. The military judge did not ask appellant whether he believed he was subjected to unlawful pretrial punishment, nor did appellant volunteer such information. Both appellant and his counsel submitted statements to the convening authority under Rule for Courts-Martial [hereinafter R.C.M.] 1105. However, neither mentioned the conditions now complained of, nor did they ask the convening authority for confinement credit for unlawful pretrial punishment. DISCUSSION Article 13, UCMJ, provides: No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to ensure his presence [at trial], but he may be subjected to minor punishment during that period for infractions of discipline. Article 13, UCMJ, proscribes purposefully imposing punishment upon an accused before guilt or innocence has been adjudicated or the “infliction of unduly rigorous circumstances during pretrial detention which, in sufficiently egregious circumstances, may give rise to a permissible inference that an accused is being punished, or may be so excessive as to constitute punishment.” United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F.1997); see Coyle v. Commander, 21st Theater Army Area Command, 47 M.J. 626, 630 (Army Ct.Crim.App.1997). Conditions are not deemed “unduly rigorous” if, under the totality of the circumstances, they are reasonably imposed pursuant to legitimate governmental interests. See McCarthy, 47 M.J. at 168. Constitutional due process requires an adjudication of guilt before punishment. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Pretrial confinement becomes unlawful punishment “if a restriction or" }, { "docid": "7318966", "title": "", "text": "the arrest or confinement imposed upon him be any more rigorous than the circumstances required to ensure his presence [at trial], but he may be subjected to minor punishment during that period for infractions of discipline. Article 13, UCMJ, proscribes purposefully imposing punishment upon an accused before guilt or innocence has been adjudicated or the “infliction of unduly rigorous circumstances during pretrial detention which, in sufficiently egregious circumstances, may give rise to a permissible inference that an accused is being punished, or may be so excessive as to constitute punishment.” United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F.1997); see Coyle v. Commander, 21st Theater Army Area Command, 47 M.J. 626, 630 (Army Ct.Crim.App.1997). Conditions are not deemed “unduly rigorous” if, under the totality of the circumstances, they are reasonably imposed pursuant to legitimate governmental interests. See McCarthy, 47 M.J. at 168. Constitutional due process requires an adjudication of guilt before punishment. Bell v. Wolfish, 441 U.S. 520, 535, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Pretrial confinement becomes unlawful punishment “if a restriction or condition is not reasonably related to a legitimate goal — if it is arbitrary or purposeless — a court permissibly may infer that the purpose of the governmental action is punishment that may not constitutionally be inflicted upon detainees qua detainees.” Id. at 539, 99 S.Ct. 1861. “The burden is on appellant to establish entitlement to additional sentence credit because of a violation of Article 13.” United States v. Mosby, 56 M.J. 309, 310 (C.A.A.F.2002) (citing R.C.M. 905(c)(2) (2000 ed.)). The issue of whether appellant was subjected to pretrial punishment is a mixed question of law and fact. Id. We conduct a de novo review of the “ultimate question whether an appellant is entitled to credit for a violation of Article 13.” Id.; see McCarthy, 47 M.J. at 165. Initially, we must determine “whether appellant has raised a legal claim which, if true, would entitle him to relief.” Fricke, 53 M.J. at 155 (citing Ginn, 47 M.J. at 244). In Fricke, a case arising from the Norfolk Naval Brig, appellant was “locked in his cell," }, { "docid": "15053017", "title": "", "text": "makes no assertion that this right was impaired. . During trial, defense moved to dismiss the charges based upon appellant’s 103 days of illegal pretrial confinement, in that he was commingled with convicted prisoners in violation of Article 13, UCMJ, 10 U.S.C. § 813 (1982). See United States v. Bruce, 14 M.J. 254 (C.M.A.1982). Appellant asserted that he was forced to waive his right to segregation from post-trial prisoners. The military judge ultimately determined that the accused had served 103 days \"in pretrial confinement, in violation of Article 13____” His order apparently was based on an acceptance of defense counsel’s assertions that appellant had been coerced by the circumstances to sign a waiver of his right to be separated from post-trial prisoners and that appellant was compelled to work with such prisoners. . We need not and do not decide at this time the existence of or extent of this Court’s jurisdiction to compel military confinement facilities to refrain from violations of either Article 55, UCMJ, or the eighth amendment to the Constitution of the United States either by tailored application of the All Writs Act, 28 U.S.C. § 1651 (1982), or by issuance of a declaratory judgment, see 28 U.S.C. § 2201 (1976). . Article 55, UCMJ, provides: \"Punishment by flogging, or by branding, marking, or tattooing on the body, or any other cruel or unusual punishment, may not be adjudged by a court-martial or inflicted upon any person subject to this chapter. The use of irons, single or double, except for the purpose of safe custody, is prohibited.” . To the extent that Article 55 specifically prohibits the use of certain archaic types of punishment and prohibits the use of irons except for safe custody purposes, its scope is broader on its face than the eighth amendment. Wappler appears to extend the scope of Article 55 even further to prohibit a court-martial from adjudging certain military punishments not expressly proscribed in the text of Article 55 which the Court speculates would not be prohibited under the eighth amendment. . There is no magical incantation hidden in the language" }, { "docid": "1877860", "title": "", "text": "OPINION OF THE COURT CARTER, Judge: A military judge sitting as a general court-marital convicted appellant, pursuant to his pleas, of wrongful use of marijuana, wrongful distribution of marijuana (three specifications), larceny (three specifications), and forgery (three specifications), in violation of Articles 112a, 121, and 123, Uniform Code of Military Justice, 10 U.S.C. §§ 912a, 921, and 923 [hereinafter UCMJ]. Appellant was sentenced to a dishonorable discharge, confinement for thirty months, and forfeiture of all pay and allowances. Pursuant to a pretrial agreement, the convening authority reduced the period of confinement to twenty months, but otherwise approved the sentence as adjudged. The case is before the court for review under Article 66, UCMJ, 10 U.S.C. § 866. In his first assignment of error, appellant asserts that while serving a portion of his sentence at the United States Army Confine ment Facility, Europe (USACFE), Mannheim, Germany, he was subjected to cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution; Article 55, UCMJ, 10 U.S.C. § 855; and this court’s holding in United States v. Kinsch, 54 M.J. 641 (Army Ct.Crim. App.2000). We are not entirely persuaded as to the merits of appellant’s allegations. However, because of the limitations placed upon our fact-finding power by United States v. Ginn, 47 M.J. 236, 248 (1997), and as a matter of judicial economy, we will exercise our “broad power to moot claims of prejudice” by granting appellant sentence relief rather than order a DuBay hearing as requested by the government in its brief. United States v. Wheelus, 49 M.J. 283, 288 (1998). Facts The following facts are not in dispute. On 21 June 2000, appellant was convicted at a special court-martial of fourteen specifications involving illegal drugs and a nine-day absence without leave. For these crimes he was sentenced to forty-five days confinement, a bad-conduct discharge, forfeiture of $670 pay per month for six months, and reduction to Private El. After serving his confinement at USACFE, appellant was released on 28 July 2000 and began the process of preparing to leave Germany on involuntary excess leave. Before completing his" }, { "docid": "3853907", "title": "", "text": "to pay his fine. Moreover, Appellant has neither attempted to pay this fine nor asserted that he is unable to do so. Therefore, we need not reach any questions regarding due process concerns in this case. DECISION The decision of the United States Army Court of Criminal Appeals is affirmed. . 10 U.S.C. §§ 920, 925 (2000). . United States v. Stebbins, No. ARMY 20000497 (A.Ct.Crim.App. Aug. 20, 2003) (unpublished). . National Defense Authorization Act for Fiscal Year 1998, Pub.L. No. 105-85, § 581(b), 111 Stat. 1759 (1997). . 143 Cong. Rec. H10961 (Dec. 15, 1997). . Exec. Order No. 13,262, 67 Fed.Reg. 18,773, 18,779 (Apr. 11, 2002). . United States v. Stebbins, 59 M.J. 463, 463 (C.A.A.F.2004)(order granting review). . See R.C.M. 1003(b)(3) discussion. . Stebbins, 59 MJ. at 463. . 60 M.J. 83, 86 (C.A.A.F.2004). . Pub.L. No. 105-85, § 581(b), 111 Stat. at 1759; see also Ronghi, 60 M.J. at 84. . 10 U.S.C. § 856a(a) (2000). . 10 U.S.C. § 920. . Id. . 10 U.S.C. § 918 (2000). . See 60 M.J. at 84 (emphasis added). . Article 120(a), UCMJ, 10 U.S.C. § 920(a) (2000); see also Article 118, UCMJ, 10 U.S.C. § 918 (2000). . 60 M.J. at 84. . See Article 56, UCMJ; see also Article 18, UCMJ, 10 U.S.C. § 818 (2000) (establishing jurisdiction of general courts-martial to adjudge punishment “under such limitations as the President may prescribe”). . 60 MJ. at 85. . MCM (2002 ed.), pt. IV, K45.e.(l). . See Ronghi, 60 MJ. at 85. . Exec. Order 13,262 § 6.b, 67 Fed.Reg. 18,773, 18,779 (Apr. 11, 2000). . Ronghi, 60 M.J. at 85 (emphasis omitted). . See Coker v. Georgia, 433 U.S. 584, 599, 97 S.Ct. 2861, 53 L.Ed.2d 982 (1977). . Id. at 592, 97 S.Ct. 2861. . Willenbring v. Neurauter, 48 MJ. 152, 180 (C.A.A.F.1998). . Id. at 178 (internal quotation marks and citations omitted). . R.C.M. 1003(b)(3) discussion (emphasis added). . R.C.M. 1003(a). . R.C.M. 1003(b)(3). . MCM (1949 ed.), 11117c, § B (emphasis added). . William Winthrop, Military Law and Precedents 419 (2d ed.1920)[hereinafter Winthrop]," }, { "docid": "17028504", "title": "", "text": "GERMAN GOVERNMENT THAT THE DEATH SENTENCE WILL BE COMMUTED IN APPELLANT’S CASE AND GAVE A MINISTERIAL COMMITMENT THAT CLEMENCY WOULD BE RECOMMENDED. LXX APPELLANT’S CONSTITUTIONAL RIGHTS TO DUE PROCESS AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT WERE DENIED BY THE TRIAL COUNSELS’, MILITARY JUDGE’S, AND PANEL’S RUSH TO COMPLETE THE APPELLANT’S COURT-MARTIAL. LXXI THE MILITARY JUDGE ERRED BY INSTRUCTING THE PANEL MEMBERS THAT THEY COULD NOT CONSIDER THAT THE INCIDENT IN QUESTION WAS PRECEDED BY A HEATED ARGUMENT. LXXII SERGEANT MURPHY’S DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT’S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT BECAUSE THE CAPITAL REFERRAL SYSTEM OPERATES IN AN ARBITRARY AND CAPRICIOUS MANNER. LXXIII SERGEANT MURPHY WAS DENIED HIS RIGHTS TO EQUAL PROTECTION, DUE PROCESS, THE EFFECTIVE ASSISTANCE OF COUNSEL, AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT GUARANTEED BY THE FIFTH, SIXTH, AND EIGHTH AMENDMENTS TO THE CONSTITUTION WHEN HE WAS REPRESENTED ON REMAND TO THE ARMY COURT BY APPELLATE COUNSEL WHO WERE BEING SENIOR-RATED BY THE OFFICER WHO RECOMMENDED A CAPITAL REFERRAL, APPROVAL OF THE FINDINGS, AND THE DEATH SENTENCE IN SERGEANT MURPHY’S CASE. LXXIV MILITARY DUE PROCESS AND FUNDAMENTAL NOTIONS OF FAIRNESS REQUIRE THAT EACH MEMBER OF THE COURT-MARTIAL SIGN HIS OR HER NAME TO THE DEATH-SENTENCE WORKSHEET OR THAT THE CONDEMNED ACCUSED BE AFFORDED THE RIGHT AND OPPORTUNITY TO POLL THE MEMBERS. LXXV THE CAPITAL SENTENCING PROCEDURE IN THE MILITARY IS UNCONSTITUTIONAL BECAUSE THE MILI TARY JUDGE LACKS THE POWER TO ADJUST OR SUSPEND A SENTENCE OF DEATH WHICH IS IMPROPERLY IMPOSED. LXXVI COURT-MARTIAL PROCEDURES DENIED SERGEANT MURPHY OF HIS SIXTH AMENDMENT RIGHT TO A JURY TRIAL AND AN IMPARTIAL CROSS-SECTION OF THE COMMUNITY. LXXVII SERGEANT MURPHY’S DEATH SENTENCE VIOLATES THE EIGHTH AMENDMENT’S PROHIBITION AGAINST CRUEL AND UNUSUAL PUNISHMENT. LXXVIII SERGEANT MURPHY’S RIGHTS TO DUE PROCESS AND TO BE FREE FROM CRUEL AND UNUSUAL PUNISHMENT WERE VIOLATED BY THE ARMY COURT’S REQUIREMENT THAT APPELLATE DEFENSE COUNSEL INVESTIGATE, RESEARCH, BRIEF, FILE, AND ARGUE ISSUES GERMANE TO HIS CASE WITHOUT HAVING ALL THE AVAILABLE RELEVANT MITIGATION EVIDENCE. LXXIX THE ARMY COURT ERRED BY DECIDING AND ISSUING AN OPINION IN THIS CASE WITHOUT WAITING" }, { "docid": "18875581", "title": "", "text": "CYR, Circuit Judge. This appeal is taken from a district court judgment directing the United States Department of the Army (“Army”) to disclose to the Providence Journal Company (“Journal”), pursuant to a Freedom of Information Act (“FOIA”) request, numerous documents relating to an internal criminal investigation into allegations against six officers of the Rhode Island National Guard (“RING”). The Army contends that the documents are protected from compelled disclosure under three FOIA exemptions. I BACKGROUND During 1988, the Office of the Inspector General of the Army (“IG”) received four anonymous letters implicating six RING officers in alleged misconduct punishable either by internal disciplinary action or by court-martial under the Uniform Code of Military Justice. See 10 U.S.C. §§ 801-946 (1985 & Supp.1992). The Army Vice Chief of Staff (“VCOS”) directed the IG to investigate the charges against two “senior” officers and to submit a report to the Army officer (“Army command”) invested with the authority to determine whether either disciplinary action or court-martial was warranted. The allegations against the four junior officers were referred to the National Guard Bureau. In order to foster cooperation and curb possible fears of reprisal or harassment, the IG’s office, which has no subpoena power, promises confidentiality — as to both witness identity and statement content— “to the maximum extent possible, particularly when it is specifically requested.” Department of Army Regulation (“DAR”) 20-1, ¶ l-15a. The IG interviewed twenty-seven witnesses in the course of the investigation. Three witnesses waived their right to confidentiality. In December 1989, the IG submitted a report (“IG Report”), which was “approved” by the Army VCOS. Army regulations provide that “approval” of an IG report does not connote official Army adoption of its findings or recommendations. DAR 20-1, 11 3-lc. The record reveals no further Army action on the IG Report. In due course, the Journal and one of its reporters filed an FOIA request for “all documents pertaining to the Inspector General’s investigation of the Rhode Island National Guard.” See 5 U.S.C. § 552 (1990). The Army released a redacted version of the IG Report, withholding several exhibits in reliance" }, { "docid": "7339435", "title": "", "text": "that Mr. Cassara was involved in the case even though he had communicated directly with Adams prior to filing the merits pleading. The Army court affirmed the trial court’s findings and sentence in a per curiam decision. That opinion noted that the court had considered “the issues personally specified by the appellant.” United States v. Adams, ARMY 20000431 (ACt.Crim.App. January 10, 2002). Thereafter, Adams filed a Petition for Grant of Review that was docketed at this Court on April 10,2002. Following the filing of the petition with this Court, Captain Carrier became aware of Mr. Cassara’s involvement in Adams’ appeal and the fact that a pleading prepared by Mr. Cassara had not been filed at the Army Court of Criminal Appeals. Captain Carrier moved to withdraw the Petition for Grant of Review without prejudice, arguing in the motion that “there are matters that appellant, civilian defense counsel, and military counsel need to address to the Army Court of Criminal Appeals, which cannot exercise jurisdiction if the case is before this Court.” Captain Carrier attached to his motion a copy of the brief that Mr. Cassara “intends to submit to the Army Court of Criminal Appeals.” We granted the motion to withdraw on May 16, 2002. Adams then filed a “Motion for Leave to File Out of Time a Request for Reconsideration” with the Army court. The “Request for Reconsideration” attached to the motion to file raised the issue of the admissibility of Adams’ pretrial statement. The Army court denied the motion for leave to file out of time. DISCUSSION “An accused has the right to effective representation by counsel through the entire period of review following trial, including representation before the Court of Criminal Appeals and our Court by appellate counsel appointed under Article 70, UCMJ, 10 U.S.C. § 870 (2000).” Diaz v. The Judge Advocate General of the Navy, 59 M.J. 34, 37 (C.A.A.F.2003)(eiting United States v. Palenius, 2 M.J. 86 (C.M.A.1977)). See also United States v. Dorman, 58 M.J. 295, 297 (C.A.A.F.2003) (“[Individuals accused of crime shall have the assistance of counsel for their defense through completion of" }, { "docid": "7318993", "title": "", "text": "v. Dewrell, 55 M.J. 131, 135 (C.A.A.F.2001) (declining to order a DuBay hearing in an IAC case because \"the appellate filings and the record as a whole ‘compellingly demonstrate’ the improbability\" of appellant's allegation that his lawyers did not permit him to testify (inner quotation marks and citation omitted)); United States v. Thompson, 51 M.J. 431, 436 (C.A.A.F.1999) (declining to order a DuBay hearing in an IAC case where appellant and government filed post-trial affidavits because appellant's affidavit did not show how his counsel's advice prejudiced him); United States v. Grant, 49 M.J. 295, 299 (C.A.A.F.1998) (declining to order a DuBay hearing in an IAC case where appellant and government filed post-trial affidavits because appellant's affidavit did not state \"what he would have told the court-martial if he had testified\"). . See Dewrell, 55 M.J. at 135 (stating, \"[ajppellant’s failure to speak up at or after trial belies his assertion” in his affidavit and increases the improbability of his claims). . We commend the practice of many military judges, who routinely ask trial defense counsel and the accused, individually, if there are any issues regarding pretrial punishment under Article 13, UCMJ. See Dep’t of Army, Pam. 27-9, Legal Services: Military Judges' Benchbook, ch. 2, § IV, at 32 (1 Apr. 2001). An affirmative waiver at trial of any pretrial punishment issues by both trial defense counsel and the accused would generally preclude appellate review and concomitant claims of \"sandbagging.” See United States v. Combs, 47 M.J. 330, 334-37 (C.A.A.F.1997) (addressing the issue of affirmative waiver in the majority, concurring, and dissenting opinions); Ginn, 47 M.J. at 248 (in the fifth Ginn principle, highlighting the importance of appellant's statements at trial in resolving such issues); Huffman, 40 M.J. at 229 (Crawford, J., dissenting in part and concurring in the result) (noting that inquiry by the military judge about unlawful pretrial punishment would obviate such post-trial claims). . Appellant’s description of the circumstances of special quarters is generally consistent with the requirements in Navy Instr. 1640.9B, Department of the Navy Corrections Manual (2 Dec. 1996) [hereinafter SECNAVINSTR], art. 4201.2.a, at 4-6, 4-7," }, { "docid": "7348567", "title": "", "text": "(1998), WHEN THE COURT ADMITTED GOVERNMENT AFFIDAVITS SPECIFICALLY REBUTTING APPELLANT’S POST-TRIAL AFFIDAVITS THAT MADE FACTUAL ASSERTIONS OF CRUEL AND UNUSUAL PUNISHMENT? We hold that the Court of Criminal Appeals properly identified and applied United States v. Ginn, 47 M.J. 236 (C.A.A.F.1997) as the decisional framework for addressing Fagan’s claim of cruel and unusual punishment. We further hold that the Court of Criminal Appeals erred in granting sentence relief to Fagan in lieu of ordering further proceedings under United States v. DuBay, 17 C.M.A. 147, 37 C.M.R. 411 (1967). BACKGROUND At the conclusion of his trial in October of 2000, Fagan began serving his confinement at the United States Army Confinement Facility, Europe (USACFE) in Mannheim, Germany. In January of 2001, he was transferred from USACFE to the Regional Confinement Facility at Fort Knox, Kentucky, to finish serving the balance of his sentence. As part of his appeal to the Court of Criminal Appeals, Fagan asserted that, while confined at USACFE, he had been subjected to cruel and unusual punishment in violation of the Eighth Amendment to the United States Constitution and Article 55, UCMJ, 10 U.S.C. § 855 (2000). In support of his claim, he submitted an affidavit to the Court of Criminal Appeals asserting that he was “repeatedly subjected to physical abuse” by a certain guard (SGT D) who conducted “overly aggressive frisks” when Fagan was leaving the dining area. He indicated that, on approximately five occasions, SGT D “forcefully took his hand up the inside of [Fagan’s] groin area and, what can described as similar to a karate chop, ... would use the side of his hand to slap [Fagan’s] testicle area.” He also indicated that, on approximately five occasions, SGT D would, “using two hands, hold the waistband of [Fagan’s] pants, tugging and yanking [his] pants in an upward motion so that [his] underwear and pants seams would forcibly be tueked up into [his] testicles and between [his] buttocks.” According to his affidavit, these instances caused Fagan excruciating pain that lasted several minutes. Fagan alleged that he did not report these instances of abuse because of fear" } ]

[ { "docid": "10801144", "title": "", "text": "appellate counsel cannot excuse Richardson’s procedural default. c. Reed v. Ross The district court found that there was cause to excuse Richardson’s procedural default because no reasonable basis existed for a challenge to the prosecution’s use of peremptories at the time of trial, relying on Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901. In Reed, the Supreme Court first identified three situations in which it might be said to announce a “new” rule: First, a decision of this Court may explicitly overrule one of our precedents. Second, a decision may overturn a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved. And, finally, a decision may disapprove a practice this Court arguably has sanctioned in prior cases. 468 U.S. at 17, 104 S.Ct. 2901 (citations and internal markup omitted). It then explained that when a case falling into one of the first two categories is given retroactive application, “there will almost certainly have been no reasonable basis upon which an attorney previously could have urged a state court to adopt the position that this Court has ultimately adopted.” Id. Under such circumstances, cause to excuse a procedural default is present. Even if we assume that Reed v. Ross is still valid law, we cannot agree with the district court’s invocation of it in the case before us. Batson did overrule Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), to the extent that the two cases were in conflict. 476 U.S. at 100 n. 25, 106 S.Ct. 1712. But Batson did not invent the rule that a state violates the Equal Protection Clause when a prosecutor uses peremptory challenges to strike jurors on account of their race, nor did it conflict with Swain in that regard. Quite to the contrary, it found that rule in Swain itself. See Batson, 476 U.S. at 91, 106 S.Ct. 1712 (“[Swain ] went on to observe ... that a State may not exercise its challenges in contravention of the Equal Protection Clause.”). For that matter," } ]

[ { "docid": "22268148", "title": "", "text": "therefore unavailable because it was intellectually unascertainable. Procedural default also cannot be overcome because the issue was settled in the lower courts. The Supreme Court has rejected the argument that default can be excused when existing lower court precedent would have rendered a claim unsuccessful. Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (“[Fjutility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.” (internal quotations omitted)). In a somewhat analogous point, the dissent suggests, based on dictum in Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), that cause may be shown where a new constitutional rule overturns “a longstanding and widespread practice to which [the Supreme Court] has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” The vitality of Reed has been questioned following the Supreme Court’s decisions in Teague and Bousley. See, e.g., Simpson v. Matesanz, 175 F.3d 200, 212 (1st Cir.1999); Boyer v. United States, 55 F.3d 296, 299 (7th Cir.1995). Assuming arguendo that Reed remains valid, Apprendi does not fall within the exception relied upon by the dissent. Reed suggests that a legal argument may be “unavailable” to counsel where contrary lower federal court authority has endured the test of time and there appears to be no discord among the courts on the issue. The origins of the exception are found in United States v. Johnson, 457 U.S. 537, 551, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982), see Reed, 468 U.S. at 17, 104 S.Ct. 2901 (citing Johnson), and two cases cited in Johnson as support for the proposition, see Gosa v. Mayden, 413 U.S. 665, 93 S.Ct. 2926, 37 L.Ed.2d 873 (1973), and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). In both Gosa and Stovall, the Supreme Court refused to retroactively apply new rules affecting constitutional principles that had been followed by lower courts for over 100 years. See Gosa, 413 U.S. at 673, 685, 93 S.Ct. 2926; Stovall, 388 U.S. at 299-300, 87 S.Ct. 1967. The" }, { "docid": "21585501", "title": "", "text": "question whether an attorney has a “reasonable basis” upon which to develop legal theory may arise in a variety of contexts, we confine our attention to the specific situation presented here: one in which this Court has articulated a constitutional principle that had not been previously recognized but which is held to have retroactive application. In United States v. Johnson, 457 U.S. 537 [102 S.Ct. 2579, 73 L.Ed.2d 202] (1982), we identified three situations in which a “new” constitutional rule, representing “ ‘a clear break with the past,’ ” might emerge from this Court. Id. at 549 [102 S.Ct. at 2586] (quoting Desist v. United States, 394 U.S. 244, 258-59 [89 S.Ct. 1030, 1039, 22 L.Ed.2d 248] (1969)). First, a decision of this Court may explicitly overrule one of our precedents. United States v. Johnson, 457 U.S. at 551 [102 S.Ct. at 2588]. Second, a decision may “overtur[n] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” Ibid. And, finally, a decision may “disapprov[e] a practice this Court arguably has sanctioned in prior cases.” Ibid. By definition, when a case falling into one of the first two categories is given retroactive application, there will almost certainly have been no reasonable basis upon which an attorney previously could have urged state court to adopt the position that this Court has ultimately adopted. Consequently, the failure of a defendant’s attorney to have pressed such a claim before a state court is sufficiently excusable to satisfy the cause requirement. Id. at 17, 104 S.Ct. at 2911. Although I recognize that the Reed case dealt with the retroactivity of a court opinion, Pitts finds himself in the same situation as did the appellant in Reed because Batson was applicable to any case, as Pitts’, which was still on direct appeal to the Alabama Supreme Court. It appears to me, therefore, that this language should be accepted by us to control the ease now before us. I would, therefore, hold that Pitts had established the required “cause” for failing to" }, { "docid": "13891796", "title": "", "text": "had previously sanctioned. Id. Boyer contends that the D.C. Circuit Court of Appeals decision in United States v. Price, 990 F.2d 1367 (D.C.Cir.1993), in which the court accepted the identical argument made here by Boyer, falls squarely within the second of these categories. Before Price, other courts had accepted without comment the Guidelines’ inclusion of conspiracy as a predicate offense. No court, however, had been presented with the question of whether the discrepancy between 28 U.S.C. § 994(h) and the commentary to section 4B1.1 of the Guidelines undermined the Commission’s authority to act as it did. The Price court concluded that the language of section 994(h) reflected a sufficiently clear determination by Congress that career offender status should not be triggered by a conspiracy conviction. Hence, by including conspiracy as a predicate offense, the Commission “acted explicitly upon grounds that [did] not sustain its action.” Id. at 1370. The court held, therefore, that the sentence was imposed illegally. Id. Boyer contends that because the decision in Price, the rationale of which has since been adopted in some circuits and rejected in other circuits, overturned the longstanding practice of including conspiracy as a predicate offense, his current petition for relief should be evaluated on the merits because it states a novel claim under Reed. Boyer asks that we take this opportunity to adopt Price as the law in this circuit, overruling the current contrary practice. See United States v. Garrett, 45 F.3d 1135 (7th Cir.1995) (holding that the inclusion of conspiracies as predicate offenses falls within the Commission’s broad delegation under 28 U.S.C. § 2255(a)); United States v. Damerville, 27 F.3d 254 (7th Cir.) (same), cert. denied, — U.S.-, 115 S.Ct. 445, 130 L.Ed.2d 355 (1994). We believe Boyer’s claim fails to overcome the threshold matter of retroactivity as set forth by the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In fact, in light of Teague, the continued vitality of Reed is questionable at best. See Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir.1990). In Teague, the Court decided whether" }, { "docid": "1749931", "title": "", "text": "legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” Reed, 468 U.S. at 16, 104 S.Ct. 2901. The Court then articulated three examples of when a claim is not “reasonably available” so as to be considered novel: (1) the obvious case where a Supreme Court decision explicitly overrules prior precedent; (2) where a decision overturns longstanding and widespread practice to which the Supreme Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved, a claim based on that decision would not have been reasonably available before then; and (3) a claim may not have been reasonably available at earlier stages of the litigation if based on a new decision disapproving of a practice which the Supreme Court had previously sanctioned. Boyer v. United States, 55 F.3d 296, 298 (7th Cir.1995), citing Reed, 468 U.S. at 17, 104 S.Ct. 2901. McCoy argues the second Reed exception applies to his case, because, before Harden, the only federal courts to have considered the issue all found that a magistrate’s acceptance of a felony guilty plea did not violate Article III or the Federal Magistrates Act. See United States v. Benton, 523 F.3d 424, 431-32 (4th Cir.2008); United States v. Woodard, 387 F.3d 1329, 1332-33 (11th Cir.2004); United States v. Ciapponi 77 F.3d 1247, 1250-52 (10th Cir.1996). Thus, he claims, the argument was so novel that its legal basis was not reasonably available to him at the time of direct appeal or his § 2255 proceeding. We find McCoy’s argument to be unavailing. First, the Harden decision on which McCoy bases his claim was issued a full two weeks before the hearing in the district court on his § 2255 motion. Harden was not an obscure, unpublished order dealing with a minor legal matter in a distant district. Rather, it was a published decision of this court that originated from the same district and even the same judge as McCoy’s case. Further, Harden concerned an important legal matter implicating procedures that were," }, { "docid": "10150333", "title": "", "text": "2901. In Reed, a case involving a defendant’s failure to raise a novel constitutional issue during his state court proceedings and appeal, the Supreme Court explained that, “if we were to hold that the novelty of a constitutional question does not give rise to cause for counsel’s failure to raise it, we might actually disrupt [lower court] proceedings by encouraging defense counsel to include any and all remotely plausible constitutional claims that could, some day, gain recognition.” Id. at 15-16, 104 S.Ct. 2901. But, while binding precedent may render an issue novel at times, “futility cannot constitute cause if it means simply that a claim was ‘unacceptable to that particular court at that particular time.’ ” Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). Thus, the inquiry here is whether the state of the law at the time of each of the Defendants’ sentencings and direct appeals was such that they did not have a “reasonable basis” upon which to challenge the constitutionality of the ACCA’s residual clause. Where a decision of the United States Supreme Court (1) “explicitly overruled one of [its own] precedents” or (2) “overturn[s] a longstanding and widespread practice to which the Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved,” it follows that “there will almost certainly have been no reasonable basis upon which an attorney previously could have urged” the lower court to adopt the position that the Supreme Court ultimately adopts. Reed, 468 U.S. at 17, 104 S.Ct. 2901. In those circumstances, then, a defendant’s failure to raise the issue is sufficiently excusable and the cause requirement is satisfied. Id. In 2007, the Supreme Court, in James v. United States, 550 U.S. 192, 127 S.Ct. 1586, 167 L.Ed.2d 532 (2007), held that the residual clause of the ACCA was not unconstitutionally vague. This issue had not been raised and argued by the parties, but instead, it was suggested by Justice Scalia in dissent. See id. at 210, 127 S.Ct. 1586" }, { "docid": "9050299", "title": "", "text": "no reasonable basis\" when the claim is based on a \"constitutional principle that had not been previously recognized but which is held to have retroactive application,\" and the constitutional principle arises from a decision in which the Court (1) \"explicitly overrule[s] one of [its own] precedents,\" or (2) \"overtur[ns] a longstanding and widespread practice to which [the] Court ha[d] not spoken, but which a near-unanimous body of lower court authority ha[d] expressly approved.\" Id. at 17, 104 S.Ct. 2901. We are bound by those latter statements. At the time of Lassend's direct appeal in 2013, the Supreme Court's decisions in James and Sykes were still good law. Both of those decisions had rejected challenges to the ACCA's residual clause on constitutional vagueness grounds. Sykes, 564 U.S. at 28, 131 S.Ct. 2267 (Scalia, J., dissenting); James, 550 U.S. at 210 n.6, 127 S.Ct. 1586. Johnson II expressly overruled James and Sykes in relation to the ACCA. See 135 S.Ct. at 2563. Even though Lassend had made a vagueness argument in the district court and had abandoned it on appeal, under Reed, we find that Lassend has shown cause for his procedural default. See United States v. Snyder, 871 F.3d 1122, 1127 (10th Cir. 2017) (holding that petitioner's procedurally defaulted Johnson II claim was not reasonably available because Johnson II overruled Sykes and James, thus satisfying the first prong of Reed ). The government argues that Bousley requires that we find that Lassend had no cause. In that case, the petitioner argued that he had cause for his procedural default because it would have been futile to raise the argument in question. Bousley, 523 U.S. at 623, 118 S.Ct. 1604. The Court rejected this contention, stating that \"futility cannot constitute cause if it means simply that a claim was 'unacceptable to that particular court at that particular time.'\" Id. (quoting Engle v. Isaac, 456 U.S. 107, 130 n.35, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982) ). The government uses this case to argue that Lassend had no cause for procedurally defaulting his ACCA constitutionality argument even though Sykes and James foreclosed such" }, { "docid": "3995215", "title": "", "text": "statutory mitigating circumstances could be considered, and Lockett v. Ohio, 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality), upon which his constitutional claim is based, was decided more than three years after his trial. In Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 2910, 82 L.Ed.2d 1 (1984), the Supreme Court held that “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” To determine whether the state of the law at the time of trial and appeal offered a reasonable basis upon which to make a constitutional challenge, the Court identified three situations in which a “new” constitutional rule, representing “a clear break with the past,” might emerge from this Court. First, a decision of this Court may explicitly overrule one of our precedents. Second, a decision may “overtur[n] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” And, finally, a decision may “disapprov[e] a practice this Court arguably has sanctioned in prior cases.” Id. at 17, 104 S.Ct. at 2911 (citations omitted). None of those situations identified by the Court cover the case before us. Lockett did not overrule Supreme Court precedent and was not contrary to a near-unanimous body of lower court authority. And Lockett did not disapprove a practice that the Supreme Court had arguably sanctioned in earlier cases. Rather, the rule in Lockett was the product of evolving capital punishment law and “followed from the earlier decisions of the [Supreme] Court and from the Court’s insistence that capital punishment be imposed fairly, and with reasonable consistency, or not at all.” Ed-dings v. Oklahoma, 455 U.S. 104, 112, 102 S.Ct. 869, 875, 71 L.Ed.2d 1 (1982). Moreover, at the time of petitioner’s trial in 1975, the ambiguous wording of Florida’s statute left open the question of whether under Florida law the presentation of mitigating circumstances was limited to those factors enumerated in" }, { "docid": "22051349", "title": "", "text": "courts, if the decision not to present a claim was not made for tactical reasons. As the Court stated, when it announces a decision that “overturns a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved” ... there will almost certainly have been no reasonable basis upon which an attorney previously could have urged a state court to adopt the position that this Court has ultimately adopted. Consequently, the failure of a defendant’s attorney to have pressed such a claim before a state court is sufficiently excusable to satisfy the cause requirement. Reed v. Ross, 468 U.S. 1, 17, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) (quoting United States v. Johnson, 457 U.S. 537, 551, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). To penalize a petitioner for failing to make a claim on appeal that had been explicitly rejected by every circuit in the country would be patently unfair. I think it plain that, in this context, the argument was not “reasonably available” and there is accordingly cause to excuse the failure to raise the claim earlier. CONCLUSION In sum, I believe that McCoy correctly contends that Apprendi errors are jurisdictional, and that he is therefore entitled to a determination on the merits of his claim without a prior determination of procedural default or Teague nonretroactivity. However, I find that he has not established a valid Apprendi claim, since he received a sentence below the statutory maximum of twenty years, and as a result he is not entitled to relief. Finally, even if Apprendi error were not jurisdictional, for the reasons stated above I believe that an Apprendi claim would not be procedurally defaulted or Teague barred. . When a habeas petitioner asserts a claim for collateral relief based on jurisdictional errors to which no contemporaneous objection was made, the petitioner need show neither cause nor prejudice. Harris v. United States, 149 F.3d 1304, 1308-09 (11th Cir.1998). . 21 U.S.C. § 841(a) provides that it is \"unlawful for any person knowingly or intentionally” to \"manufacture, distribute," }, { "docid": "19462433", "title": "", "text": "1044, 1053 (7th Cir. 2013). In general, habeas corpus petitioners may not raise any issue that they might have presented on direct appeal. McCoy v. United States , 815 F.3d 292, 295 (7th Cir. 2016). A petitioner may, however, overcome procedural default by showing cause for the default and actual prejudice, Bousley v. United States , 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998), or that \"failure to consider the defaulted claim will result in a fundamental miscarriage of justice,\" Johnson v. Loftus , 518 F.3d 453, 455-56 (7th Cir. 2008). Cross and Davis have established their right to raise this claim by way of the \"cause and prejudice\" avenue. We thus have no need to discuss the question whether the \"fundamental miscarriage of justice\" approach might also support their motions. We have no doubt that an extended prison term-which was imposed on both men as a result of their designation as career offenders-constitutes prejudice. See Glover v. United States , 531 U.S. 198, 203, 121 S.Ct. 696, 148 L.Ed.2d 604 (2001). That narrows our inquiry to whether they have shown cause for not objecting at trial. A change in the law may constitute cause for a procedural default if it creates \"a claim that 'is so novel that its legal basis is not reasonably available to counsel.' \" Bousley , 523 U.S. at 622, 118 S.Ct. 1604 (quoting Reed v. Ross , 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) ). In Reed , the Court identified three nonexclusive situations in which an attorney may lack a \"reasonable basis\" to raise a novel claim: First, a decision of this Court may explicitly overrule one of our precedents. Second, a decision may \"overtur[n] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.\" And, finally, a decision may \"disapprov[e] a practice this Court arguably has sanctioned in prior cases.\" Reed , 468 U.S. at 17, 104 S.Ct. 2901 (quoting United States v. Johnson , 457 U.S. 537, 551, 102 S.Ct." }, { "docid": "13891797", "title": "", "text": "in some circuits and rejected in other circuits, overturned the longstanding practice of including conspiracy as a predicate offense, his current petition for relief should be evaluated on the merits because it states a novel claim under Reed. Boyer asks that we take this opportunity to adopt Price as the law in this circuit, overruling the current contrary practice. See United States v. Garrett, 45 F.3d 1135 (7th Cir.1995) (holding that the inclusion of conspiracies as predicate offenses falls within the Commission’s broad delegation under 28 U.S.C. § 2255(a)); United States v. Damerville, 27 F.3d 254 (7th Cir.) (same), cert. denied, — U.S.-, 115 S.Ct. 445, 130 L.Ed.2d 355 (1994). We believe Boyer’s claim fails to overcome the threshold matter of retroactivity as set forth by the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). In fact, in light of Teague, the continued vitality of Reed is questionable at best. See Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir.1990). In Teague, the Court decided whether a new rule, defined as a rule which commands a result “not dictated by precedent existing at the time the defendant’s conviction became final,” id. at 301, 109 S.Ct. at 1070, deserves retroactive effect. After contrasting the concerns present in a direct appeal with those present in a collateral proceeding, the Court concluded that although new rules were to be applied retroactively to cases on direct review, they should not be applied retroactively to eases on collateral review. Id. at 310, 109 S.Ct. at 1075. Boyer’s claim demonstrates the tension between Reed and Teague. On the one hand, to take advantage of the Reed definition of cause, his claim must rely on a new development in the law which occurred subsequent to his earlier challenges. Yet Teague entitles Boyer only to the rules applicable at the time his conviction became final; that is, the rules in existence at the time his direct appeals were exhausted. Were we to adopt Price today, Boyer would not be entitled to its benefit. Teague aside, Boyer’s claim falls short" }, { "docid": "22268165", "title": "", "text": "failing to raise it on direct appeal. Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), quoted in Bousley, 523 U.S. at 622, 118 S.Ct. 1604. As explained by the Court in Reed v. Ross, such “cause” arises where a new constitutional rule overturns “a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” Id. at 17, 104 S.Ct. 2901 (quoting United States v. Johnson, 457 U.S. 537, 551, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). This is precisely the situation before us. The rule announced in Apprendi was a departure from long accepted procedures. The dissenting opinion characterizes the holding as follows: In its opinion, the Court marshals virtually no authority to support its extraordinary rule. Indeed, it is remarkable that the Court cannot identify a single instance, in the over 200 years since the ratification of the Bill of Rights, that our Court has applied, as a constitutional requirement, the rule it announces today. 120 S.Ct. at 2381. With this in mind, it cannot be fairly argued that an Apprendi claim was “reasonably available” to counsel at the time of Mr. Moss’s appeal. Thus the failure to raise the Apprendi claim on direct appeal is excusable. Our Court today, citing other courts of appeals, questions the vitality of Reed, but the Supreme Court itself has reaffirmed Reed as recently as 1998. Bousley, supra, 523 U.S. at 622, 118 S.Ct. 1604. In Reed, the novelty of a claim was held to excuse a lawyer’s failure to raise it on direct appeal. It is ironic that the claim thus preserved from procedural default was a claim under Win-ship and Mullaney that a criminal defendant had been deprived of due process by an instruction that failed to require the prosecution to bear the burden of persuasion with respect to each element of a crime." }, { "docid": "22268164", "title": "", "text": "Failure to include an essential element in a federal indictment warrants relief even if the government later proves the omitted element at trial. See United States v. Zangger, 848 F.2d 923, 925 (8th Cir.1988); United States v. Camp, 541 F.2d 737, 740 (8th Cir.1976). II. The Court also holds that Mr. Moss faces a procedural hurdle because he did not raise his Apprendi claim on direct appeal. The government relies on the rule stated in Bousley v. United States, 523 U.S. 614, 621-22, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) (quoted cases omitted), that collateral review is an extraordinary remedy and ‘will not be allowed to do service for an appeal.’ ... Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either ‘cause’ and actual ‘prejudice,’ or that he is ‘actually innocent.’ I believe that this is an instance where a claim’s legal basis was “not reasonably available to counsel,” thereby establishing cause for failing to raise it on direct appeal. Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), quoted in Bousley, 523 U.S. at 622, 118 S.Ct. 1604. As explained by the Court in Reed v. Ross, such “cause” arises where a new constitutional rule overturns “a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” Id. at 17, 104 S.Ct. 2901 (quoting United States v. Johnson, 457 U.S. 537, 551, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982)). This is precisely the situation before us. The rule announced in Apprendi was a departure from long accepted procedures. The dissenting opinion characterizes the holding as follows: In its opinion, the Court marshals virtually no authority to support its extraordinary rule. Indeed, it is remarkable that the Court cannot identify a single instance, in the over 200 years since the ratification of the Bill of Rights, that our Court has applied, as a constitutional requirement, the rule it announces today." }, { "docid": "10099169", "title": "", "text": "the only cases that would have supported the claim at all, it could not conclude that they provided a reasonable basis upon which the petitioner “could have realistically appealed his conviction.\" 468 U.S. at 18-19, 104 S.Ct. at 2911-12. . In Reed, the Supreme Court recognized that \"whether an attorney has a 'reasonable basis’ upon which to develop a legal theory may arise in a variety of contexts” and, therefore, did not attempt to delineate those situations. 468 U.S. at 17, 104 S.Ct. at 2910-11. Instead, it confined its analysis to the specific situation presented in Reed: “one in which th[e Supreme] Court has articulated a constitutional principle that had not been previously recognized but which is held to have retroactive application.” Id. In analyzing the Mullaney claim at issue in Reed, the Court discussed three situations that the Court previously had identified in the retroactivity context as times when a new constitutional rule representing a \"clear break with the past” might emerge from the Supreme Court: (1) a Supreme Court decision might overrule prior Supreme Court precedent, (2) a decision might \" ‘overturfn] a longstanding and widespread practice to which [the Supreme Court] has not spoken, but which a near-unanimous body of lower court authority has expressly approved,' ” and (3) a decision might “ 'disapprov[e] a practice th[e] Court arguably has sanctioned in prior cases.’” Id. (quoting United States v. Johnson, 457 U.S. 537, 549, 551, 102 S.Ct. 2579, 2586, 2587, 73 L.Ed.2d 202 (1982)). The Reed Court, however, did not state that these situations were the exclusive means by which a petitioner could establish that there was no reasonable basis for his claim at the time of his procedural default. Indeed, as discussed above, the Court clearly recognized that a number of situations could give rise to “cause\" based on lack of a reasonable basis for a claim. There are significant differences between Adams’ Caldwell claim and the Mullaney claim at issue in Reed which suggest that the present situation is not sufficiently like that involved in Reed to warrant an analysis in terms of the three" }, { "docid": "19462434", "title": "", "text": "That narrows our inquiry to whether they have shown cause for not objecting at trial. A change in the law may constitute cause for a procedural default if it creates \"a claim that 'is so novel that its legal basis is not reasonably available to counsel.' \" Bousley , 523 U.S. at 622, 118 S.Ct. 1604 (quoting Reed v. Ross , 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984) ). In Reed , the Court identified three nonexclusive situations in which an attorney may lack a \"reasonable basis\" to raise a novel claim: First, a decision of this Court may explicitly overrule one of our precedents. Second, a decision may \"overtur[n] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.\" And, finally, a decision may \"disapprov[e] a practice this Court arguably has sanctioned in prior cases.\" Reed , 468 U.S. at 17, 104 S.Ct. 2901 (quoting United States v. Johnson , 457 U.S. 537, 551, 102 S.Ct. 2579, 73 L.Ed.2d 202 (1982) ). The government, relying on a footnote in Richardson v. Lemke , 745 F.3d 258, 274 n.7 (7th Cir. 2014), suggests that Reed is no longer good law. In Richardson , we assumed the validity of Reed , even as we noted that in Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir. 1990), we had questioned Reed 's continuing force after Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Later cases, however, put our concerns to rest. The Supreme Court has since relied on Reed , see Bousley , 523 U.S. at 622, 118 S.Ct. 1604, as have we, e.g. , McCoy v. United States , 815 F.3d at 295-96 (7th Cir. 2016) ; McKinley v. Butler , 809 F.3d 908, 912 (7th Cir. 2016). Moreover, Prihoda did not hold that legal change as understood by Reed could never constitute cause; rather, it said that legal change had to qualify as retroactive under Teague for the petitioner to prevail. Prihoda , 910 F.2d" }, { "docid": "21585500", "title": "", "text": "a constitutional question does not give rise to cause for counsel’s failure to raise it, we might actually disrupt state-court proceedings by encouraging defense counsel to include any and all remotely plausible constitutional claims that could, some day, gain recognition. Particularly disturbed by this prospect, Judge Haynsworth, writing for the Court of Appeals in this case, stated: “If novelty were never cause, counsel on appeal would be obliged to raise and argue every conceivable constitutional claim, no matter how far fetched, in order to preserve a right for post-conviction relief upon some future, unforeseen development in the law. Appellate courts are already over-burdened with meritless and frivolous cases and contentions, and an effective appellate lawyer does not dilute meritorious claims with frivolous ones. Lawyers representing appellants should be encouraged to limit their contentions on appeal at least to those which may be legitimately regarded as debatable.” [Ross v. Reed ] 704 F.2d [705] at 708 [(4th Cir.1983) ]. 468 U.S. at 15, 104 S.Ct. at 2910. The Court then made the following statement: Although the question whether an attorney has a “reasonable basis” upon which to develop legal theory may arise in a variety of contexts, we confine our attention to the specific situation presented here: one in which this Court has articulated a constitutional principle that had not been previously recognized but which is held to have retroactive application. In United States v. Johnson, 457 U.S. 537 [102 S.Ct. 2579, 73 L.Ed.2d 202] (1982), we identified three situations in which a “new” constitutional rule, representing “ ‘a clear break with the past,’ ” might emerge from this Court. Id. at 549 [102 S.Ct. at 2586] (quoting Desist v. United States, 394 U.S. 244, 258-59 [89 S.Ct. 1030, 1039, 22 L.Ed.2d 248] (1969)). First, a decision of this Court may explicitly overrule one of our precedents. United States v. Johnson, 457 U.S. at 551 [102 S.Ct. at 2588]. Second, a decision may “overtur[n] a longstanding and widespread practice to which this Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” Ibid. And, finally," }, { "docid": "9050298", "title": "", "text": "S.Ct. 1899, 198 L.Ed.2d 420 (2017) ). A. Procedural Default \"[C]laims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.\" Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003) (citing United States v. Frady, 456 U.S. 152, 167-68, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982) ; Bousley v. United States, 523 U.S. 614, 622, 118 S.Ct. 1604, 140 L.Ed.2d 828 (1998) ). The procedural default rule is \"adhered to by the courts to conserve judicial resources and to respect the law's important interest in the finality of judgments.\" Id. 1. Cause A petitioner has cause for procedurally defaulting a constitutional claim where that claim was \"so novel that its legal basis [wa]s not reasonably available to counsel\" at the time of the default. Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984). Despite that broad language of reasonableness, the Supreme Court also held in Reed that a claim \"will almost certainly have [had] ... no reasonable basis\" when the claim is based on a \"constitutional principle that had not been previously recognized but which is held to have retroactive application,\" and the constitutional principle arises from a decision in which the Court (1) \"explicitly overrule[s] one of [its own] precedents,\" or (2) \"overtur[ns] a longstanding and widespread practice to which [the] Court ha[d] not spoken, but which a near-unanimous body of lower court authority ha[d] expressly approved.\" Id. at 17, 104 S.Ct. 2901. We are bound by those latter statements. At the time of Lassend's direct appeal in 2013, the Supreme Court's decisions in James and Sykes were still good law. Both of those decisions had rejected challenges to the ACCA's residual clause on constitutional vagueness grounds. Sykes, 564 U.S. at 28, 131 S.Ct. 2267 (Scalia, J., dissenting); James, 550 U.S. at 210 n.6, 127 S.Ct. 1586. Johnson II expressly overruled James and Sykes in relation to the ACCA. See 135 S.Ct. at 2563. Even though Lassend had made a vagueness argument in the district court and had abandoned" }, { "docid": "22268147", "title": "", "text": "v. Mergerson, 4 F.3d 337, 344 (5th Cir.1993); United States v. Underwood, 982 F.2d 426, 429 (10th Cir.1992); United States v. Lam Kwong-Wah, 966 F.2d 682, 685 (D.C.Cir.1992); United States v. Perez, 960 F.2d 1569, 1574 (11th Cir.1992); United States v. Trujillo, 959 F.2d 1377, 1381 (7th Cir.1992); United States v. Lowden, 955 F.2d 128, 130 (1st Cir.1992); United States v. Restrepo, 946 F.2d 654, 655 (9th Cir.1991); United States v. Rigsby, 943 F.2d 631, 639-43 (6th Cir.1991); United States v. Campuzano, 905 F.2d 677, 678-79 (2d Cir.1990); United States v. Powell, 886 F.2d 81, 85 (4th Cir.1989); United States v. Gibbs, 813 F.2d 596, 599 (3d Cir.1987). The circuits, however, unanimously rejected the notion that drug quantity is an element of the offense. See United States v. Angle, 230 F.3d 113, 122 (4th Cir.2000) (gathering cases). Although the argument was not rekindled by defense counsel until after Jones, the fact that it was raised extensively in the past, and explicitly addressed by this court previously, precludes a conclusion that the argument was “novel” and therefore unavailable because it was intellectually unascertainable. Procedural default also cannot be overcome because the issue was settled in the lower courts. The Supreme Court has rejected the argument that default can be excused when existing lower court precedent would have rendered a claim unsuccessful. Bousley, 523 U.S. at 623, 118 S.Ct. 1604 (“[Fjutility cannot constitute cause if it means simply that a claim was unacceptable to that particular court at that particular time.” (internal quotations omitted)). In a somewhat analogous point, the dissent suggests, based on dictum in Reed v. Ross, 468 U.S. 1, 16, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), that cause may be shown where a new constitutional rule overturns “a longstanding and widespread practice to which [the Supreme Court] has not spoken, but which a near-unanimous body of lower court authority has expressly approved.” The vitality of Reed has been questioned following the Supreme Court’s decisions in Teague and Bousley. See, e.g., Simpson v. Matesanz, 175 F.3d 200, 212 (1st Cir.1999); Boyer v. United States, 55 F.3d 296, 299 (7th" }, { "docid": "1749930", "title": "", "text": "is “actually innocent” of the crimes of which he was convicted. Torzala v. United States, 545 F.3d 517, 522 (7th Cir.2008). McCoy has made no argument that he is actually innocent of the offenses to which he pled guilty. Therefore, his failure to raise the magistrate judge claim will only be excused if he can demonstrate cause and prejudice for the default. McCoy argues that he can show cause because his argument “was not reasonably available on either direct appeal or during his § 2255 proceedings with the district court.” Specifically, McCoy claims that he is basing his argument on this court’s decision in Harden, a case that conflicts with all prior federal circuit court precedent and was not issued until July 14, 2014. Therefore, he had cause for not raising this argument before now. In support of his argument, McCoy cites to the U.S. Supreme Court’s decision in Reed v. Ross, 468 U.S. 1, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984), where the Court held “where a constitutional claim is so novel that its legal basis is not reasonably available to counsel, a defendant has cause for his failure to raise the claim in accordance with applicable state procedures.” Reed, 468 U.S. at 16, 104 S.Ct. 2901. The Court then articulated three examples of when a claim is not “reasonably available” so as to be considered novel: (1) the obvious case where a Supreme Court decision explicitly overrules prior precedent; (2) where a decision overturns longstanding and widespread practice to which the Supreme Court has not spoken, but which a near-unanimous body of lower court authority has expressly approved, a claim based on that decision would not have been reasonably available before then; and (3) a claim may not have been reasonably available at earlier stages of the litigation if based on a new decision disapproving of a practice which the Supreme Court had previously sanctioned. Boyer v. United States, 55 F.3d 296, 298 (7th Cir.1995), citing Reed, 468 U.S. at 17, 104 S.Ct. 2901. McCoy argues the second Reed exception applies to his case, because, before Harden, the" }, { "docid": "19462435", "title": "", "text": "2579, 73 L.Ed.2d 202 (1982) ). The government, relying on a footnote in Richardson v. Lemke , 745 F.3d 258, 274 n.7 (7th Cir. 2014), suggests that Reed is no longer good law. In Richardson , we assumed the validity of Reed , even as we noted that in Prihoda v. McCaughtry, 910 F.2d 1379, 1386 (7th Cir. 1990), we had questioned Reed 's continuing force after Teague v. Lane , 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Later cases, however, put our concerns to rest. The Supreme Court has since relied on Reed , see Bousley , 523 U.S. at 622, 118 S.Ct. 1604, as have we, e.g. , McCoy v. United States , 815 F.3d at 295-96 (7th Cir. 2016) ; McKinley v. Butler , 809 F.3d 908, 912 (7th Cir. 2016). Moreover, Prihoda did not hold that legal change as understood by Reed could never constitute cause; rather, it said that legal change had to qualify as retroactive under Teague for the petitioner to prevail. Prihoda , 910 F.2d at 1385-86. In other words, we thought that legal change under Teague was concentrically nested within legal change under Reed , rendering the latter superfluous once a claim qualified under Teague . Id . Cross and Davis could not reasonably have challenged the guidelines residual clause when the district court sentenced them in 1992 and 2000 respectively. On this point, we agree with our sister circuits that \"no one-the government, the judge, or the [defendant]-could reasonably have anticipated Johnson .\" United States v. Snyder , 871 F.3d 1122, 1127 (10th Cir. 2017) (quoting United States v. Redrick , 841 F.3d 478, 480 (D.C. Cir. 2016) ). In fact, the Johnson Court expressly overruled its own precedent, 135 S.Ct. at 2563 (\"Our contrary holdings in James [, 550 U.S. 192, 127 S.Ct. 1586,] and Sykes [, 131 S.Ct. 2267,] are overruled.\"), and so satisfied the first criterion of Reed . Although Johnson involved the ACCA rather than the career-offender guidelines, the language it evaluated was nearly identical to that in the career-offender guidelines. We acknowledge that" }, { "docid": "10099170", "title": "", "text": "Supreme Court precedent, (2) a decision might \" ‘overturfn] a longstanding and widespread practice to which [the Supreme Court] has not spoken, but which a near-unanimous body of lower court authority has expressly approved,' ” and (3) a decision might “ 'disapprov[e] a practice th[e] Court arguably has sanctioned in prior cases.’” Id. (quoting United States v. Johnson, 457 U.S. 537, 549, 551, 102 S.Ct. 2579, 2586, 2587, 73 L.Ed.2d 202 (1982)). The Reed Court, however, did not state that these situations were the exclusive means by which a petitioner could establish that there was no reasonable basis for his claim at the time of his procedural default. Indeed, as discussed above, the Court clearly recognized that a number of situations could give rise to “cause\" based on lack of a reasonable basis for a claim. There are significant differences between Adams’ Caldwell claim and the Mullaney claim at issue in Reed which suggest that the present situation is not sufficiently like that involved in Reed to warrant an analysis in terms of the three situations discussed in Reed as constituting a “clear break with the past.\" The Mullaney claim at issue in Reed was a due process claim and, therefore, could be analyzed in terms of a long history of consideration by the Supreme Court as well as the lower courts. Adams’ Eighth Amendment claim, however, involves an area of law that has no similar \"past.” The Supreme Court’s decision in Furman was only six years old at the time of Adams' trial and the statute under which he was sentenced, as well as all modern death penalty statutes, had a similarly brief history. The Reed Court’s analysis of the Mullaney issue before it thus assumes a past- in the form of a long decisional history that simply is not present in the Eighth Amendment context. It is in fact this lack of any past decisional history indicating that the issues raised by Adams’ Caldwell claim were even ad dressed by the Eighth Amendment that gives rise to \"cause” in this case. Nevertheless, even assuming that our analysis should" } ]

[ { "docid": "6639635", "title": "", "text": "and conspiracy to suppress and eliminate competition in the sale and distribution of smoked fish in restraint of commerce; that the conspiracy was carried out by a continuing agreement and concert of action whereby jobbers of smoked fish were to be induced and compelled to become members of the defendant Union and to refrain from competing with each other; the Union was to impose fines and penalize jobber members who sold to customers of fellow jobber members; the smokehouses were to boycott jobbers not members of the Union; and the Union was to circulate blacklists to the smokehouses, undertake strike action against smokehouses and picket or threaten to picket customers of non-member jobbers. Injunctive relief is sought directing the defendant Union to sever or expel from membership all jobbers engaged in the buying and selling of fish for their own account; and enjoining the defendant Union and the individual defendants in the future from organizing jobbers or entering into any agreement for the purpose of eliminating competition in the purchase and sale of smoked fish. The answer pleads that the commerce involved is minimal, that the jobbers are proper subjects of unionization because their work is similar to that of chauffeur employees, that there could have been no conspiracy between the Union and the smokehouses since the latter derived no benefit from the arrangement and were not willing participants, and that, in any event, the allegedly unlawful activities came to an end in 1954. The answer further challenges the jurisdiction of the Court, asserting that the activities complained of are matters exclusively within the province of the National Labor Relations Board and that the Union did not authorize the acts of the individual defendants, as is required by Section 6 of the Norris-LaGuardia Act, to make it subjected to the relief sought. There is one principal issue raised by the pleadings and that is whether the jobbers are independent business men as plaintiff maintains and therefore not a proper subject of unionization; if they are, then it follows that the defendants’ alleged activities in forcing them into the Union and" } ]

[ { "docid": "8555355", "title": "", "text": "thereby agreeing to make operative the plan outlined by defendant Singer and other Union representatives. During the period between October 1954 and May 27, 1959 (the period covered by the complaint), there were in Los Angeles County about 40 to 50 grease peddlers, 35 to 45 of whom were members of defendant Union. After April 1955, these grease peddlers held their membership in a subdivision of the Union known as Local 626-B. During this same period, there were in Los Angeles County eight processors of yellow grease, six of which acquired all or most of their waste grease from grease peddlers. The parties filed a stipulation providing that seventy-two facts set forth therein were admitted, required no proof and should be accepted by the court as being true for purposes of the instant action. These facts relate in detail the plan and the activities of the defendants, and support fully the allegations of the complaint that defendants were guilty of price-fixing and elimination of competition in the gathering and sale of waste grease in the Los Angeles area. It is further stipulated: 1. That the acts of defendants and their co-conspirators constitute a direct, substantial and unreasonable restraint upon foreign trade and commerce in yellow grease. 2. That defendants unlawfully combined and conspired in unreasonable restraint of trade in violation of Section 1 of the Sherman Act. 3. That the court may enter judgment that defendants have violated Section 1 of the Sherman Act as charged in the complaint. 4. That plaintiff is entitled to injunctive relief perpetually enjoining defendants from participating, and from forcing the processors to participate, in any plan the purpose and effect of which is to fix prices and eliminate competition in the peddlers’ gathering grease and selling it to processors. The sole remaining issue in the case is whether the decree should include a provision that the Union be ordered to terminate the membership of peddlers and be perpetually enjoined from accepting peddlers as members, unless they become bona fide employees, and that the peddler defendants be enjoined from holding-membership in and participating in the" }, { "docid": "8555379", "title": "", "text": "ownership of stock or any other interest in any other ■corporate defendant, and that certain corporate officers resign from their positions. The Supreme Court affirmed the ■divestiture and resignation provisions of the decree. In the instant case, the stipulated facts clearly show that before the grease peddlers joined the defendant Union, there was no suppression of competition among them, and that only the support of the Union and the powerful weapons at its command enabled the peddlers and the Union together to destroy free competition in the purchase and sale of waste grease, and to drive several processors •out of business. As long as this association of the peddlers and the Union continues, there is danger that their combined activities will be revived and that further suppression ■of competition in the yellow grease industry will result. To borrow the language of the Supreme Court in the Crescent Amusement Co. case, supra, “The ■proclivity in the past to use that affiliation for an unlawful end warrants effective assurance that no such opportunity will be available in the future.” [323 U.S. 173, 65 S.Ct. 262.] Therefore, far from being punitive, a decree terminating the member.ship of the grease peddlers in defendant Union appears to be the most effective, if not the only, means of preventing a ■recurrence of defendants’ unlawful activities. The decree shall include a provision ordering defendant Union to terminate the membership of its grease peddler members, and perpetually enjoining the Union from accepting grease peddlers as members unless they become bona fide employees. It shall also enjoin the peddler defendants from holding membership in .and participating in the affairs of the Union, unless they become bona fide employees. Counsel for plaintiffs is directed to prepare, serve and lodge findings and judgment in accordance with local rule 7, West’s Ann.Code. . Title 15 U.S.C.A. “§ 17. Antitrust laws not applicable to labor organizations “Tlie labor of a human being is not a commodity or article of commerce. Nothing contained in the antitrust laws shall be construed to forbid the existence and operation of labor, agricultural, or horticultural organizations, instituted for" }, { "docid": "8555353", "title": "", "text": "ability to load, unload and drive a truck. Grease peddlers drive from restaurant to restaurant picking up small amounts of waste grease in cans and, on the same day, transport and unload the entire collection to one of the processing companies. Their earnings represent the difference between the buy and sell price of the waste grease, diminished by the cost of maintaining and operating the truck. The processing companies who buy the waste restaurant grease from the peddlers then convert it into yellow grease, which they sell either directly to buyers in foreign countries or to buyers in California for shipment to foreign countries. Therefore, any restraint on or disruption in, or interference with, the purchase of waste restaurant grease by peddlers and its sales to processors, and any suppression or elimination of competition in the purchase and sale of waste grease by processors from peddlers, necessarily and directly restrains and affects the flow of yellow grease in foreign commerce. Prior to 1954, the grease peddlers of Los Angeles were not members of, or in any way affiliated with, any labor union. However, in the fall of 1954, the defendant Singer, a business agent of defendant Union, and certain grease peddlers, caused most of the grease peddlers in Los Angeles County to become members of defendant Union. In soliciting their membership, Union representatives, including defendant Singer, proposed the following general plan: The Union would increase the profits of the grease peddlers by increasing the margin between the prices paid by said peddlers for restaurant grease and the prices they would be paid by processors; grease peddlers would be prevented from soliciting or buying grease from the accounts of other peddlers; the processors would be required to deal only with those grease peddlers who were members in good standing of the Union; and unless grease peddlers became members of the Union, they would have no place to sell their restaurant grease and would be forced out of business. In October 1954, a majority of grease peddlers in Los Angeles County, including defendants Taylor, Brandt, Klein and Carlis, joined the defendant Union," }, { "docid": "8555364", "title": "", "text": "inevitable causal effect which demand or lack of demand of smoked fish by the jobbers and their customers would have on its production by the smokehouses and * * * their employees. There was no competition in any respect between the chauffeurs and the jobbers — if any, it was between the smokehouses who sold retail and the jobbers. Although the physical aspect of the work of these two groups is similar, ‘the economic and social difference between them lies in the method of compensation and return for their toil.’ People v. Distributors Division, 169 Misc. 255, 7 N.Y.S.2d 185, 187. (Italics added.) “The demands which were made by the Union of the smokehouses on behalf of the jobbers in 1954 — excepting perhaps that concerning the welfare and pension funds- — were purely the demands and requirements of an independent business man having to do with extension of credit, price and discrimination, and not with wages, working conditions or hours, of employees. * * * ” Thus, the rationale of the court in the Fish Smokers case, supra, appears to substantiate the inference drawn from the two Supreme Court cases discussed earlier, namely, that the membership of so-called “independent contractors” in a labor union is not proper unless the purpose of the membership is to secure better wages and working conditions for all union members through the elimination of competition caused by the fact that the independent contractor and the union employees perform the same function. However, the true significance of the Fish Smokers case is not that it merely states the circumstances under which independent contractors may not properly be forced into a union. Rather, the real importance of this decision lies in the fact that it indicates the result of such a misalliance, which is that the union and the independent contractors have put together a combination in restraint of trade, in violation of the Sherman Act. The court makes this clear by stating at page 229 of 183 F.Supp.: “There is one principal issue raised by the pleadings and that is whether the jobbers are independent" }, { "docid": "8555370", "title": "", "text": "all competition among themselves and to prevent all competition from others, a situation was created not included within the exemptions of the Clayton and Norris-La Guardia Acts. (Italics added.) “It must be remembered that the exemptions granted the unions were special exceptions to a general legislative plan. The primary objective of all the Anti-trust legislation has been to preserve business competition and to proscribe business monopoly. It would be a surprising thing if Congress, in order to prevent a misapplication of that legislation to labor unions, had bestowed upon such unions complete and unreviewable authority to aid business groups to frustrate its primary objective. For if business groups, by combining with labor unions, can fix prices and divide up markets, it was little more than a futile gesture for Congress to prohibit price fixing by business groups themselves. Seldom, if ever, has it been claimed before, that by permitting labor unions to carry on their own activities, Congress intended completely to abdicate its constitutional power to regulate interstate commerce and to empower interested business groups to shift our society from a competitive to a monopolistic economy. Finding no purpose of Congress to immunize labor unions who aid and abet manufacturers and traders in violating the Sherman Act, we hold that the district court correctly concluded that the respondents had violated the Act.” (Italics added.) Columbia River Packers Ass’n v. Hinton, 1942, 315 U.S. 143, 62 S.Ct. 520, 86 L.Ed. 750, is another instance where the Supreme Court held that injunctive relief was not barred by the Norris-La Guardia Act, when a violation of the Sherman Act was involved. In the instant case, Section 6 of the Clayton Act (15 U.S.C.A. § 17, supra) does not sanction the alliance of the peddler defendants and the defendant Union, because such alliance was not formed for the purpose of “mutual help”, but rather for the purpose of enabling the peddlers, the Union and the processors together to obtain control of the waste grease trade in the Los Angeles area, with consequent restrictions upon the free flow of yellow grease in foreign commerce. As" }, { "docid": "8555357", "title": "", "text": "affairs of the Union, unless they become bona fide employees. Defendants’ first argument in opposition to the ouster of peddlers from defendant Union, is that “membership of peddlers in a union does not transform the union into an illegal combination in restraint of trade under the antitrust laws.” The proposition thus stated appears to be pointless, inasmuch as plaintiff and defendants have stipulated to the fact that the defendants (including the Union and its peddler members) “unlawfully combined and conspired in unreasonable restraint of foreign trade and commerce in yellow grease in violation of Section 1 of the Sherman Act.” (Italics added.) The issue at hand is whether, under the facts as stipulated, the court may properly enter a decree compelling the defendant Union to oust its peddler members. Defendants cite many Supreme Court cases which they claim condone a union’s taking independent contractors into membership. Therefore, what defendants are presumably arguing is that since there is nothing illegal per se about an independent contractor’s joining a union, this court has no power to compel' the expulsion of defendant peddlers from defendant Union. It may be noted at the outset that the precise issue of whether an independent contractor may properly join a union appears never to have been before the Supreme Court. At any rate, this issue was not decided in any of the cases cited by defendants in their brief. A reading of these eases discloses that only in the most indirect fashion did the court indicate its views as to the propriety of extending union membership to independent contractors, jobbers, vendors, or the like. For example, in Bakery and Pastry Drivers and Helpers Local, etc. v. Wohl, 1941, 315 U.S. 769, 62 S.Ct. 816, 86 L. Ed. 1178, in an effort to compel peddlers (independent jobbers) to join the bakery drivers’ union, members of that union had peacefully picketed bakeries from which peddlers obtained their goods, carrying placards with the peddlers’ names and a true statement of the union’s grievances. The Supreme Court held that a state court injunction against such picketing was an unconstitutional invasion of" }, { "docid": "8555356", "title": "", "text": "Los Angeles area. It is further stipulated: 1. That the acts of defendants and their co-conspirators constitute a direct, substantial and unreasonable restraint upon foreign trade and commerce in yellow grease. 2. That defendants unlawfully combined and conspired in unreasonable restraint of trade in violation of Section 1 of the Sherman Act. 3. That the court may enter judgment that defendants have violated Section 1 of the Sherman Act as charged in the complaint. 4. That plaintiff is entitled to injunctive relief perpetually enjoining defendants from participating, and from forcing the processors to participate, in any plan the purpose and effect of which is to fix prices and eliminate competition in the peddlers’ gathering grease and selling it to processors. The sole remaining issue in the case is whether the decree should include a provision that the Union be ordered to terminate the membership of peddlers and be perpetually enjoined from accepting peddlers as members, unless they become bona fide employees, and that the peddler defendants be enjoined from holding-membership in and participating in the affairs of the Union, unless they become bona fide employees. Defendants’ first argument in opposition to the ouster of peddlers from defendant Union, is that “membership of peddlers in a union does not transform the union into an illegal combination in restraint of trade under the antitrust laws.” The proposition thus stated appears to be pointless, inasmuch as plaintiff and defendants have stipulated to the fact that the defendants (including the Union and its peddler members) “unlawfully combined and conspired in unreasonable restraint of foreign trade and commerce in yellow grease in violation of Section 1 of the Sherman Act.” (Italics added.) The issue at hand is whether, under the facts as stipulated, the court may properly enter a decree compelling the defendant Union to oust its peddler members. Defendants cite many Supreme Court cases which they claim condone a union’s taking independent contractors into membership. Therefore, what defendants are presumably arguing is that since there is nothing illegal per se about an independent contractor’s joining a union, this court has no power to compel'" }, { "docid": "8555361", "title": "", "text": "in loading, unloading and transporting meat and meat products for packing houses and related employers. Every processor of yellow grease in the Los Angeles area has employees who are members of the defendant Union. The grease peddler defendants are independent, self-employed businessmen who purchase.waste grease from restaurants and other institutions, and then transport the grease in their own trucks to the processing companies, to whom they sell the grease. These facts do not show that there is competition between the peddlers and the union employees of the processors. On the contrary, there is no competition between these groups because each is engaged in a different line' of work, the peddlers buying grease, transporting and selling it to the processors, and the union members performing other functions for their employers (the processors). The defendant Union solicited the membership of the peddler defendants not for the purpose of raising the wages and working conditions of the peddlers and the union employees of the processors, but for the sole purpose of increasing the income of the peddlers alone, and enabling the Union, the peddlers and the processors to control the business of purchasing and selling waste grease in the Los Angeles area. In United States v. Fish Smokers Trade Council, Inc., D.C.S.D.N.Y.1960, 183 F.Supp. 227, which is quite similar on its facts to the instant case, the court concluded 'that the jobbers (independent businessmen) were not a proper subject of unionization because, regardless of how the jobbers were characterized, there was no competition between them and the union employees. The Fish Smokers case involved a suit under Section 4 of the Sherman Act to prevent and restrain continuing violations by defendants of Section 1 of the Act. There, the defendant Union had a total membership of about 700, of which about 75 were jobbers (the counterpart of the peddlers here) who purchased fish from smokehouses for resale to customers. The remaining members of the defendant Union were true employees, a number of whom performed the same function in their capacity as employees of the employer smokehouses, i. e., the employees delivered the fish" }, { "docid": "8555360", "title": "", "text": "discussion is that it furnishes another instance of a union’s attempt to compel the joinder of self-employed persons whose activities tend in some manner to compete with the functions of union members, thus affecting unfavorably the wages and employment of the union members. Upon the basis of the Bakery Drivers and Milk Wagon Drivers’ cases, supra, it may be said that the Supreme Court apparently and impliedly sanctions the union’s coercing the joinder of independent contractors, jobbers or vendors (1) if these groups compete with union members by doing the same or similar work; and (2) if the object of having these groups join the union is to eliminate their unfair competition with union members, and the consequent lowering of the wages and working conditions of union members. In the instant case, the facts contained in the stipulation show that neither of these conditions for the proper joinder of independent contractors with a labor union, is present. The members of defendant Union (Los Angeles Meat and Provision Drivers Union, Local 626) are truck drivers engaged in loading, unloading and transporting meat and meat products for packing houses and related employers. Every processor of yellow grease in the Los Angeles area has employees who are members of the defendant Union. The grease peddler defendants are independent, self-employed businessmen who purchase.waste grease from restaurants and other institutions, and then transport the grease in their own trucks to the processing companies, to whom they sell the grease. These facts do not show that there is competition between the peddlers and the union employees of the processors. On the contrary, there is no competition between these groups because each is engaged in a different line' of work, the peddlers buying grease, transporting and selling it to the processors, and the union members performing other functions for their employers (the processors). The defendant Union solicited the membership of the peddler defendants not for the purpose of raising the wages and working conditions of the peddlers and the union employees of the processors, but for the sole purpose of increasing the income of the peddlers alone," }, { "docid": "8555371", "title": "", "text": "to shift our society from a competitive to a monopolistic economy. Finding no purpose of Congress to immunize labor unions who aid and abet manufacturers and traders in violating the Sherman Act, we hold that the district court correctly concluded that the respondents had violated the Act.” (Italics added.) Columbia River Packers Ass’n v. Hinton, 1942, 315 U.S. 143, 62 S.Ct. 520, 86 L.Ed. 750, is another instance where the Supreme Court held that injunctive relief was not barred by the Norris-La Guardia Act, when a violation of the Sherman Act was involved. In the instant case, Section 6 of the Clayton Act (15 U.S.C.A. § 17, supra) does not sanction the alliance of the peddler defendants and the defendant Union, because such alliance was not formed for the purpose of “mutual help”, but rather for the purpose of enabling the peddlers, the Union and the processors together to obtain control of the waste grease trade in the Los Angeles area, with consequent restrictions upon the free flow of yellow grease in foreign commerce. As stated in the Allen Bradley case, supra, Congress did not intend to permit violations of the Sherman Act to go unpunished merely because a labor union is one of the parties to the unlawful combination condemned by that Act. Nor does the Norris-La Guardia Act furnish refuge for the defendants. The strikes and picketing here involved are not “labor disputes” within the meaning of the Act: for these disputes grew out of the refusal of some of the processors to buy waste grease only from Union peddlers, and in no way related to the improvement of wages or working conditions of the Union members. The instant case is clearly parallel to the Columbia Packers case, supra, in that the disputes centered about the processors’ purchase of a commodity (waste grease), and in nowise related to the employer-employee relationship. Therefore, Section 4(b) of the Norris-La Guardia Act (29 U.S.C.A. § 104(b), supra) does not prohibit the issuance of a decree which would terminate the membership of grease peddlers in defendant Union. Defendants assert that this court" }, { "docid": "8555354", "title": "", "text": "any way affiliated with, any labor union. However, in the fall of 1954, the defendant Singer, a business agent of defendant Union, and certain grease peddlers, caused most of the grease peddlers in Los Angeles County to become members of defendant Union. In soliciting their membership, Union representatives, including defendant Singer, proposed the following general plan: The Union would increase the profits of the grease peddlers by increasing the margin between the prices paid by said peddlers for restaurant grease and the prices they would be paid by processors; grease peddlers would be prevented from soliciting or buying grease from the accounts of other peddlers; the processors would be required to deal only with those grease peddlers who were members in good standing of the Union; and unless grease peddlers became members of the Union, they would have no place to sell their restaurant grease and would be forced out of business. In October 1954, a majority of grease peddlers in Los Angeles County, including defendants Taylor, Brandt, Klein and Carlis, joined the defendant Union, thereby agreeing to make operative the plan outlined by defendant Singer and other Union representatives. During the period between October 1954 and May 27, 1959 (the period covered by the complaint), there were in Los Angeles County about 40 to 50 grease peddlers, 35 to 45 of whom were members of defendant Union. After April 1955, these grease peddlers held their membership in a subdivision of the Union known as Local 626-B. During this same period, there were in Los Angeles County eight processors of yellow grease, six of which acquired all or most of their waste grease from grease peddlers. The parties filed a stipulation providing that seventy-two facts set forth therein were admitted, required no proof and should be accepted by the court as being true for purposes of the instant action. These facts relate in detail the plan and the activities of the defendants, and support fully the allegations of the complaint that defendants were guilty of price-fixing and elimination of competition in the gathering and sale of waste grease in the" }, { "docid": "8555372", "title": "", "text": "stated in the Allen Bradley case, supra, Congress did not intend to permit violations of the Sherman Act to go unpunished merely because a labor union is one of the parties to the unlawful combination condemned by that Act. Nor does the Norris-La Guardia Act furnish refuge for the defendants. The strikes and picketing here involved are not “labor disputes” within the meaning of the Act: for these disputes grew out of the refusal of some of the processors to buy waste grease only from Union peddlers, and in no way related to the improvement of wages or working conditions of the Union members. The instant case is clearly parallel to the Columbia Packers case, supra, in that the disputes centered about the processors’ purchase of a commodity (waste grease), and in nowise related to the employer-employee relationship. Therefore, Section 4(b) of the Norris-La Guardia Act (29 U.S.C.A. § 104(b), supra) does not prohibit the issuance of a decree which would terminate the membership of grease peddlers in defendant Union. Defendants assert that this court cannot frame a decree compelling defendant Union to oust its grease peddler members, because such a decree would violate due process by abrogating the contract rights of those who are not parties to the within proceeding. Defendants’ argument runs thus: The defendant Union is affiliated with the International Brotherhood of Teamsters, Chauffeurs and Warehousemen. Both the defendant Union and other unions affiliated with the International Brotherhood, have peddler members. Since neither the International Brotherhood nor its other affiliated unions are parties to this action, a decree of this court ordering the ouster of grease peddlers from the defendant Union would violate due process by abrogating the contracts between the absent unions and their peddler members. To state this argument is to refute it: for how can a decree ordering the defendant Union to expel its grease peddler members possibly affect the contracts between other unions in the International Brotherhood and their peddler members ? In support of their contention, defendants cite Consolidated Edison Co. of New York v. N. L. R. B., 1938, 305 U.S." }, { "docid": "8555352", "title": "", "text": "BYBNE, District Judge. The United States filed its complaint under Section 4 of the Sherman Act (15 U.S.C.A. § 4) seeking to prevent and restrain a continuing violation by defendants of Section 1 of the Act (15 U.S.C.A. § 1). The defendant Los Angeles Meat and Provision Drivers Union, Local 626, is affiliated with the International Brotherhood of Teamsters, Chauffeurs, Ware-housemen and Helpers of America, and has its principal place of business in Los Angeles, California. Defendant Meyer Singer is business representative of the Union who actively managed and coordinated the affairs and acts of the grease peddler members of the Union. Defendants Lee Taylor, Hubert Brandt, Walter Klein and Harold Carlis are grease peddler members of the Union. “Grease peddlers” are defined as independent businessmen who are in the business of buying, transporting and selling waste restaurant grease for their own account. These self-employed peddlers have no established place of business; no employees, except an occasional loader; no capital investment, except a small equity in a truck; no skill or special qualifications except the ability to load, unload and drive a truck. Grease peddlers drive from restaurant to restaurant picking up small amounts of waste grease in cans and, on the same day, transport and unload the entire collection to one of the processing companies. Their earnings represent the difference between the buy and sell price of the waste grease, diminished by the cost of maintaining and operating the truck. The processing companies who buy the waste restaurant grease from the peddlers then convert it into yellow grease, which they sell either directly to buyers in foreign countries or to buyers in California for shipment to foreign countries. Therefore, any restraint on or disruption in, or interference with, the purchase of waste restaurant grease by peddlers and its sales to processors, and any suppression or elimination of competition in the purchase and sale of waste grease by processors from peddlers, necessarily and directly restrains and affects the flow of yellow grease in foreign commerce. Prior to 1954, the grease peddlers of Los Angeles were not members of, or in" }, { "docid": "8555367", "title": "", "text": "the Milk Wagon Drivers’ Union decision, or whether it was really a conspiracy masquerading as a labor agreement in order to restrain competition between business men as in Allen Bradley Co. v. Local Union No. 3, supra, * * *, depends on whether the jobbers, although so-called independent business men, were really a labor group.” Defendant peddlers and the defendant Union’s employees in this case did not compete with each other. Therefore, the peddlers are not a labor group and are not the proper subject of unionization. Moreover, in this case the peddlers were taken into the defendant Union for the purpose of raising their income and enabling the Union, the peddlers and the processors to put together a combination to control the business of buying and selling waste grease in the Los Angeles area, thereby restraining foreign commerce in yellow grease in violation of the Sherman Act. Defendants contend that it is not possible to grant the relief sought by plaintiff because of Section 6 of the Clayton Act [15 U.S.C.A. § 17] and Section 4 (b) of the Norris-La Guardia Act [29 U. S.C.A. § 104(b)] . It has long been settled law that neither the Clayton Act nor the Norris-La Guardia Act permits labor unions to combine with other, non-labor groups for the purpose of monopolizing trade in violation of the Sherman Act. Allen Bradley Co. v. Local Union No. 3, 1945, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939; Columbia River Packers Ass’n v. Hinton, 1942, 315 U.S. 143, 62 S.Ct. 520, 86 L. Ed. 750. In Allen Bradley Co. v. Local Union No. 3, supra, the Electrical Workers Union and its members, prompted by the desire to get and hold jobs for themselves at good wages and under high working standards, combined with employers and manufacturers of electrical equipment to restrain competition in, and to monopolize the marketing of, electrical equipment. The Supreme Court held that the Union’s activities constituted a violation of the Sherman Act, despite the provisions of the Clayton and Norris-La Guardia Acts. In this regard, the court made the following" }, { "docid": "8555362", "title": "", "text": "and enabling the Union, the peddlers and the processors to control the business of purchasing and selling waste grease in the Los Angeles area. In United States v. Fish Smokers Trade Council, Inc., D.C.S.D.N.Y.1960, 183 F.Supp. 227, which is quite similar on its facts to the instant case, the court concluded 'that the jobbers (independent businessmen) were not a proper subject of unionization because, regardless of how the jobbers were characterized, there was no competition between them and the union employees. The Fish Smokers case involved a suit under Section 4 of the Sherman Act to prevent and restrain continuing violations by defendants of Section 1 of the Act. There, the defendant Union had a total membership of about 700, of which about 75 were jobbers (the counterpart of the peddlers here) who purchased fish from smokehouses for resale to customers. The remaining members of the defendant Union were true employees, a number of whom performed the same function in their capacity as employees of the employer smokehouses, i. e., the employees delivered the fish from the smokehouses to wholesale or retail outlets. The jobbers had joined the Union because of an agreement between the Union and the smokehouses providing that the latter would not sell fish to jobbers who were not Union members. This agreement the Union enforced by threats of strikes against smokehouses refusing to boycott non-Union jobbers. Under these facts, the court concluded that the jobbers were not properly Union members, stating at pages 234 and 235 of 183 F.Supp.: “If the work and functions they [the jobbers] performed in the smoked fish industry conflicted with or competed with the work and functions performed by the chauffeur employees of the smokehouses, and affected the hours, working conditions and wages of these men, then, regardless of what they called themselves, the jobbers would lawfully be forced into the Union. However, it is evident that the mere fact that the jobbers worked long hours and at times earned less than the chauffeur employees had no effect on the working conditions or wages of the chauffeurs — other than the" }, { "docid": "8555366", "title": "", "text": "business men as plaintiff maintains and therefore not a proper subject of unionization; if they are, then it follows that the defendants’ alleged activities in forcing them into the Union and into agreements to allocate their customers is an act in restraint of trade within the stricture of the antitrust laws, Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, 65 S.Ct. 1533, 89 L.Ed. 1939. If, however, these jobbers are a labor group as defendants contend, then their activities are protected by the Clayton and Norris-La Guardia Acts and under Milk Wagon Drivers’ Union, etc. v. Lake Valley Farm Products, 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63.” and again at page 234: “But whether such agreement among the smokehouses, the Union and the jobbers was simply the usual closed shop labor agreement in order ‘to see that each of them (the Jobber) earns a living, and that not one guy gets it all * * * and that everyone gets an even break’, as defendant argues, and consequently lawful under the Milk Wagon Drivers’ Union decision, or whether it was really a conspiracy masquerading as a labor agreement in order to restrain competition between business men as in Allen Bradley Co. v. Local Union No. 3, supra, * * *, depends on whether the jobbers, although so-called independent business men, were really a labor group.” Defendant peddlers and the defendant Union’s employees in this case did not compete with each other. Therefore, the peddlers are not a labor group and are not the proper subject of unionization. Moreover, in this case the peddlers were taken into the defendant Union for the purpose of raising their income and enabling the Union, the peddlers and the processors to put together a combination to control the business of buying and selling waste grease in the Los Angeles area, thereby restraining foreign commerce in yellow grease in violation of the Sherman Act. Defendants contend that it is not possible to grant the relief sought by plaintiff because of Section 6 of the Clayton Act [15 U.S.C.A. § 17] and" }, { "docid": "8555374", "title": "", "text": "197, 59 S.Ct. 206, 83 L.Ed. 126 and N. L. R. B. v. Sterling Electric Motors, 9 Cir., 1940, 112 F.2d 63. In both of these cases the issue under consideration was whether the National Labor Relations Board had jurisdiction to enter orders affecting vital •rights of union members without first giving the union notice or an opportunity to be heard. This issue is not pertinent in the instant case: for here, the decree terminating the peddlers’ membership in the Union would be rendered by a court of the United States and not by an administrative agency, such as the National Labor Relations Board. Furthermore, such a decree would be rendered only after having given the interested parties (Local Union 626, including its grease peddler members) a full hearing. Surely it cannot be seriously contended that the International Brotherhood and its other affiliated unions are “interested parties” to a decree which would terminate only the membership of grease peddlers in Local 626, and would in nowise affect the membership of other peddlers in Local 626, or of grease peddlers or any species of peddlers in any other union affiliated with the International Brotherhood. The mandatory injunction sought by plaintiff would embody a provision that the Union be ordered to terminate the membership of peddlers in' said Union and be perpetually enjoined from accepting peddlers as members thereof, unless they become bona fide employees. Defendants argue that such a mandatory provision is too vague and broad because it would expel from defendant Union not only the 30 or 40 grease peddler members, but in addition all of the Union’s 500 or 600 peddler members. The term “peddlers” as used throughout this action is defined by sub-paragraph 15, Paragraph IV of the complaint (page 3) as “persons who are self-employed entrepreneurs engaged in the business of buying and selling restaurant grease for their own account from restaurants, hotels, and institutions, transporting said grease in trucks owned or operated by themselves to the plants of processors, and selling such restaurant grease to said processors.” Such a definition certainly excludes all peddler members of" }, { "docid": "8555378", "title": "", "text": "the nature and extent of the relief necessary to protect the public interest, the District Court entered a final judgment dissolving the international boxing clubs, directing the individual defendants to divest themselves of their stock in Madison Square Garden, and granting injunctive relief designed to open up the market in the business of promoting professional world championship boxing matches. The Supreme Court affirmed the judgment, holding that the relief granted was not beyond the allowable discretion of the District Court. In United States v. Crescent Amusement Co., supra the United States brought civil suit against nine affiliated companies operating motion picture theaters throughout five States, and against eight major distributors of motion pictures, charging them with conspiracy to restrain interstate trade and commerce in motion picture films and to monopolize the exhibition of films in violation of §§ 1 and 2 of the Sherman Act. The District Court found that certain of the defendants had violated the Act, and entered a decree which required, among other things, that the corporate exhibí tors divest themselves of ownership of stock or any other interest in any other ■corporate defendant, and that certain corporate officers resign from their positions. The Supreme Court affirmed the ■divestiture and resignation provisions of the decree. In the instant case, the stipulated facts clearly show that before the grease peddlers joined the defendant Union, there was no suppression of competition among them, and that only the support of the Union and the powerful weapons at its command enabled the peddlers and the Union together to destroy free competition in the purchase and sale of waste grease, and to drive several processors •out of business. As long as this association of the peddlers and the Union continues, there is danger that their combined activities will be revived and that further suppression ■of competition in the yellow grease industry will result. To borrow the language of the Supreme Court in the Crescent Amusement Co. case, supra, “The ■proclivity in the past to use that affiliation for an unlawful end warrants effective assurance that no such opportunity will be available in" }, { "docid": "8555375", "title": "", "text": "or of grease peddlers or any species of peddlers in any other union affiliated with the International Brotherhood. The mandatory injunction sought by plaintiff would embody a provision that the Union be ordered to terminate the membership of peddlers in' said Union and be perpetually enjoined from accepting peddlers as members thereof, unless they become bona fide employees. Defendants argue that such a mandatory provision is too vague and broad because it would expel from defendant Union not only the 30 or 40 grease peddler members, but in addition all of the Union’s 500 or 600 peddler members. The term “peddlers” as used throughout this action is defined by sub-paragraph 15, Paragraph IV of the complaint (page 3) as “persons who are self-employed entrepreneurs engaged in the business of buying and selling restaurant grease for their own account from restaurants, hotels, and institutions, transporting said grease in trucks owned or operated by themselves to the plants of processors, and selling such restaurant grease to said processors.” Such a definition certainly excludes all peddler members of defendant Union who deal in any commodity other than waste restaurant grease. Therefore, a decree compelling defendant Union to oust peddlers from its ranks would not be too vague or too broad because it would not affect the membership of any but the grease peddlers, whose activities as Union members are stipulated to have contributed to the violation of Section 1 of the Sherman Act. However, any remaining doubt as to which Union members would be reached by the mandatory injunction, would be quickly dispelled simply by inserting the adjective “grease” before the noun “peddlers” in the final form of the injunction. Defendants next argue that the proposed mandatory injunction is punitive because the expulsion of grease peddlers from defendant Union is not necessary in order to insure against possible future violations of the Sherman Act by defendants. In antitrust cases, it is the duty of the court to frame its decree so as to suppress the unlawful practices and to take such reasonable measures as will preclude their revival. United States v. Crescent Amusement" }, { "docid": "8555358", "title": "", "text": "the expulsion of defendant peddlers from defendant Union. It may be noted at the outset that the precise issue of whether an independent contractor may properly join a union appears never to have been before the Supreme Court. At any rate, this issue was not decided in any of the cases cited by defendants in their brief. A reading of these eases discloses that only in the most indirect fashion did the court indicate its views as to the propriety of extending union membership to independent contractors, jobbers, vendors, or the like. For example, in Bakery and Pastry Drivers and Helpers Local, etc. v. Wohl, 1941, 315 U.S. 769, 62 S.Ct. 816, 86 L. Ed. 1178, in an effort to compel peddlers (independent jobbers) to join the bakery drivers’ union, members of that union had peacefully picketed bakeries from which peddlers obtained their goods, carrying placards with the peddlers’ names and a true statement of the union’s grievances. The Supreme Court held that a state court injunction against such picketing was an unconstitutional invasion of the right of free speech. From the facts and the decision of the Bakery Drivers case, it may be obliquely inferred that peddlers can join, or properly be coerced to join, a union when they are engaged in the same kind of work as union members and compete with the members, thus lowering the working conditions and wages of the latter. Another case cited by defendants is Milk Wagon Drivers’ Union etc. v. Lake Valley Farm Products, 1940, 311 U.S. 91, 61 S.Ct. 122, 85 L.Ed. 63. Here, the Supreme Court held there existed a “labor dispute” within the meaning of the Norris-LaGuardia Act, 29 U.S.C.A. § 101 et seq.; and, the requirements of this Act not having been met, the District Court had no jurisdiction to grant an injunction, notwithstanding that the suit was based upon alleged violation of the Sherman Act. The Milk Wagon Drivers’ court did not pass even indirectly upon the question of whether the picketing had a legitimate objective. The only point of the case for the purpose of this" } ]

[ { "docid": "11998719", "title": "", "text": "measured against the standards of admissibility of evidence. Rich Hill Coal Co. v. Bashore, 334 Pa. 449, 7 A.2d 302 (1939). With these precepts in mind, we have carefully examined plaintiff’s offer of proof. Aside from the short span of time between the alleged earlier failure of the crane and the declaration sought to be admitted, there was no offer of any proof of the elements of a res gestae statement. No offer was made to the effect that the crane operator was in a state of nervous excitement at the time he uttered the statement. Because the alleged failure of the crane was not such a circumstance to raise a reasonable presumption of spontaneity of ut terance, see Smith v. State Workmen’s Ins. Fund, 140 Pa.Super. 602, 14 A.2d 554 (1940), and since the substance of the statement was a matter of opinion rather than sensory perception, the trial judge did not abuse his discretion in excluding the proffered testimony. B At the close of the trial, the district judge submitted two special interrogate-' ries to the jurors. Plaintiff asserts that by so doing, the district court committed error, in that the submitted interrogatories over-simplified the issues to plaintiff’s prejudice. A trial judge has wide discretion in determining whether to use special verdicts upon written interrogatories, see Rule 49, Fed.R.Civ.P.; Peterson v. Peterson, 400 F.2d 336, 343 (8th Cir. 1968); Judith Ann Liberian Transport Corp. v. Crawford, 399 F.2d 924, 927 (9th Cir. 1968), “and this discretion extends to determining the form of the special verdict and interrogatories * * * ” R. H. Baker v. Smith-Blair, Inc., 331 F.2d 506, 508 (9th Cir. 1964). The only limitation is that the questions asked of the jury be adequate to determine the factual issues essential to the judgment. Id. We caution that a trial judge should not fashion interrogatories in such manner that he withdraws from the jury valid theories of recovery, if such theories are supported by the evidence. Ill For the reasons stated in Part I of this opinion, supra, the judgment of the district court will be" } ]

[ { "docid": "22829108", "title": "", "text": "inquiry and the primary disputed issue in this case. Following extensive discovery, Shaw moved for summary judgment and, as an adjunct to that motion, moved in limine to exclude all of Heller’s expert witness testimony. The District Court held a Daubert hearing over several days. It then filed an unpublished opinion and order, granting defendant’s motions for exclusion of plaintiffs expert testimony and for summary judgment. See Heller v. Shaw Indus., Inc., No. Civ.A.95-7657, 1997 WL 535163 (E.D.Pa. Aug. 18, 1997). On appeal, we review a District Court’s decision to exclude expert testimony for abuse of discretion. See Joiner, 118 S.Ct. at 517. The District Court’s interpretation of the requirements of Rule 702, however, is subject to plenary review. See Paoli, 35 F.3d at 749. As to the District Court’s entry of summary judgment for defendants, “we exercise plenary review, construing all evidence and resolving all doubts raised by affidavits, depositions, answers to interrogatories, and admissions on file in favor of the non-moving party.” Iberia Foods Corp. v. Romeo, 150 F.3d 298, 302 (3d Cir.1998). Heller does not appear to dispute that, if we determine that the District Court properly excluded all of plaintiffs expert testimony, summary judgment for defendant was the proper course for the key claims of design defect and failure to warn. This is because, without either Dr. Papano’s or Alan Todd’s testimony, Heller would be left without any proof of causation, a necessary element for each of these claims. However, if we decide (as we do) that some of the testimony should have been admitted, we must determine whether that testimony is sufficient to create a material issue of fact on the causation issue. Most of our opinion will focus on the key underlying issue of the admissibility of Heller’s expert witness testimony, on which the causation issue hinges. While there are other issues in the case, including breach of warranty and misrepresentations, we will address these only briefly, for they are easily disposed of without extended discussion. II. Expert Witnesses: The Legal Background Rule 702 provides: “If scientific, technical, or other specialized knowledge will assist" }, { "docid": "23244993", "title": "", "text": "Deere next contends that the district court erred in allowing Wheeler's psychiatrist, Dr. Dominic Losacca, to testify that \"momentary forgetfulness\" is a human factor which Deere should have considered in designing the 7720 combine. Though Dr. Losacca was not a specialist in cognitive psychology, we agree with the district court that his testimony was \"fair game\" for a psychiatrist testifying on the subject of human judgments. III R. doc. 153 at 770. See LeMaire v. United States, 826 F.2d 949, 951-52 (10th Cir.1987) (district court did not err in permitting cardiologist to render expert opinion on neurological matters given the undisputed relationship between patient's neurological and cardiovascular condition). Dr. Losacca may not have been the optimal witness to speak to cognitive factors that govern product design, but such lack of specialization only affected the weight, not the admissibility of his testimony. III. Deere next challenges the jury instructions. A. Deere argues that the' district court erred in refusing to submit a special interrogatory to the jury on whether the danger posed by the vertical auger and cleanout door was open and obvious. See Fed.R.Civ.P. 49. Because of this oversight, Deere contends that there is no way to determine how the jury resolved the dispos-itive issue of open and obvious danger. \"The submission of special interrogatories lies within the discretion of the trial court and will not be reversed absent an abuse of discretion.\" Firestone Tire & Rubber Co. v. Pearson, 769 F.2d 1471, 1483 (10th Cir.1985). Once a trial court elects to use such interrogatories on a given element of a plaintiff's claim, all material issues must be included in the interrogatories. Menne v. Celotex Corp., 861 F.2d 1453, 1473 (10th Cir.1988). On the other hand, when jury instructions comprehensively cover all material issues in the case, a district court does not abuse its discretion in denying a request for special interrogatories. Millers' Nat'l Ins. Co. v. Wichita Flour Mills Co., 257 F.2d 93, 101 (10th Cir.1958). See, e.g. Pearson, 769 F.2d at 1483 (no abuse of discretion in denying requested special interrogatories where \"the instructions given adequately guided the" }, { "docid": "1557124", "title": "", "text": "possibility of a new trial, we will consider the remaining contentions of the defendants. The defendants claim that the district court erred by failing to give a special interrogatory on causation. We are not persuaded by this argument. The district court has wide latitude in deciding which issues should be covered by special interrogatories. Its action will only be overturned for an abuse of discretion. Here, the district court covered causation in its charge and felt a special interrogatory would not be necessary. General ly this is not an abuse of discretion. See Kornicki v. Calmar Steamship Corp., 460 F.2d 1134, 1139 (3d Cir. 1972). The defendants try to overcome this rule by labelling the question of whether the plaintiff could have gotten an injunction as a causation issue. They argue that because this was the crucial element of the plaintiff’s case, it was an abuse of discretion not to have a special interrogatory covering it. This argument is somewhat disingenuous given that a portion of the defendants’ brief treats this as a question of materiality. In any event, we feel that any problems of causation are adequately disposed of by applying objective materiality criteria. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 384-85, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Assuming a charge in accordance with the previous section were given, because we view the question as one of materiality and because special interrogatory 1 required a finding as to materiality, we reject the defendants’ argument. C. Scienter 1. The defendants contend that the district court improperly charged the jury as to the defendants’ scienter. To prevail on a rule 10b-5 claim, the plaintiff must prove scienter. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). In this circuit, a showing of recklessness satisfies the scienter requirement. See Coleco Industries, Inc. v. Berman, 567 F.2d 569 (3d Cir. 1977) (per curiam), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978). In Coleco, we left open the definition of recklessness. See id. at 574. At trial, the defendants asked the" }, { "docid": "12461668", "title": "", "text": "was entitled to find these answers inconsistent. It was entitled to decline to enter judgment on the jury’s findings that Firestone shares fault for an injury it did not cause. Relying on White again, Firestone further argues that the district court should have ignored the answers to the interrogatories that followed interrogatory 1(b) and entered judgment for Firestone when the jury found no causation linking the defect in defendant’s product to plaintiff’s injury. In White, as in this case, the jury answered Special Issue 3 “We do not” when asked if it found that the defendants in that suit for fraud and breach of implied warranty knew the apartments they were selling had structural defects. It then ignored the court’s instructions to refrain from answering the remaining questions once it answered no to this question. In answer to the remaining special issues the jury determined, inconsistent with its earlier answer, that the defendants had knowingly withheld structural information to induce the plaintiffs into entering a contract. The district court entered judgment for defendants predicated on the jury’s answer to Special Issue 3. In affirming, we concluded that “if the district court has correctly found that the jury’s answer to a question that was supposed to terminate further inquiry is clear and disposes of the legal issues, on review we must ignore the jury’s necessarily conflicting answers to any other questions.” White, 809 F.2d at 1161. Thus, in White we recognized the broad discretion the district court enjoys to refuse to consider interrogatories answered in violation of the court’s instructions. We have consistently given the district court wide discretion in deciding whether the jury’s answers to the court’s questions are clear. See Nance v. Gulf Oil Corp., 817 F.2d 1176, 1178 (5th Cir.1987); Landry v. Offshore Logistics, Inc., 544 F.2d 757, 761 (5th Cir.1977). As we noted in Nance, “[m]ere resubmission does not necessarily coerce a verdict.” Nance, 817 F.2d at 1178. Moreover, Fed.R.Civ.P. 49(b), which permits the trial court to resubmit inconsistent answers to interrogatories that accompany a general verdict, and our reading of Fed. R.Civ.P. 49(a) to allow resubmission" }, { "docid": "2606668", "title": "", "text": "you cannot find him liable even if the plaintiff’s rights were in fact violated as a result of the defendant’s objectively reasonable action. (Emphasis added). Thus, the question we must address is whether the court abused its discretion in deciding to combine the issues of liability and qualified immunity into a single interrogatory. See Barton’s, 886 F.2d at 1434 (stating that “a trial court is afforded great latitude in the framing and structure of the instructions and the special interrogatories given to the jury, ... [and we will not] disturb that discretion absent a showing of abuse of discretion”). The court gave the following interrogatory: Considering all of the instruction in the jury charge, do you find that Plaintiff Robert D. Sikes proved by a preponderance of the evidence that on August 22, 1995, Defendant Juan F. Gaytan violated Plaintiffs Eighth Amendment constitutional right to be free from cruel and unusual punishment. In denying the defendant’s request for a separate jury interrogatory on qualified immunity, the trial court concluded that giving separate interrogatories created the possibility of confusing the jury, resulting in the return of “irreconcilable” answers. It is plausible that a jury could be confused by an interrogatory asking whether the force Gaytan used against Sikes amounted to cruel and unusual punishment, and then being asked in an immediately following interrogatory whether the conduct of Gaytan was reasonable. Indeed, finding that the force used against Sikes was cruel and unusual would ordinarily seem to preclude the possibility of a finding that actions of Gaytan were reasonable. Still, we are constrained also to say that a plausible argument can be made that a separate interrogatory on qualified immunity, supported by a clear jury instruction, arguably could clarify rather than confuse the issue before the jury. In the light of this equipoise, we must conclude that the district court did not abuse its discretion in this case by giving a single jury instruction on the issues of liability and qualified immunity. The judgment of the district court is in all respects AFFIRMED. . Additionally, Gaytan appeals (1) the sufficiency of the" }, { "docid": "14184056", "title": "", "text": "which scenario it found to be the real one: otherwise the court cannot tell whether the verdict for plaintiff was premised on a set of fact which should, or should not, give rise to liability. Here, however, there is no doubt as to whether or not the jury believed that Nationwide had failed to settle or interplead before 31 October, 1981: the parties are agreed that Nationwide did neither. In addition we have held that, on the facts of this case, the district court did not err in permitting the jury to impose on Nationwide a duty to interplead. These two facts each independently dictate the conclusion that it was unnecessary for the jury to explain whether it believed Nationwide’s breach of duty lay in its failure to settle or its failure to interplead. Nationwide also attacks the special interrogatories as improper because, Nationwide contends, they did not spell out the proximate causation issue with sufficient clarity. Under rule 49, Fed.R.Civ.P., however, the formulation of special verdict interrogatories is within the district court’s discretion. Kornicki v. Calmar Steamship Co., 460 F.2d 1134, 1139 (3d Cir.1972); 5A James Wm. Moore, Moore’s Federal Practice 49-16 (1985) (footnote omitted) (“it is within the trial judge’s discretion to structure the special verdict interrogatories”). “The only limitation [on this discretion] is that the questions asked of the jury be adequate to determine the factual issues essential to the judgment.” Kornicki, 460 F.2d at 1139. The interrogatories submitted to the jury on this issue satisfy that standard. By asking whether “if Nationwide had [settled or interpled] the Eckmans’ judgment against McNally would not have been en tered” the interrogatories properly ask the jury to decide whether Nationwide’s breach of duty, if there was one, caused McNally’s injury, i.e. the Eckman judgment. The causation issue is therefore dealt with by the interrogatories. We do not believe that the district judge was obliged to distill the causation issue any more finely than this. B. Nationwide also argues that the district court mischaracterized the standard by which Nationwide’s conduct should be judged because the district court told the jury" }, { "docid": "23366813", "title": "", "text": "misleading with respect to any material fact, or which omits to state any material fact necessary in order to make the statements therein not false or misleading.... 17 C.F.R. § 240.14a-9(a) (1999). Section 14(a) and Rule 14a-9, like § 10(b) and Rule 10b-5, do not expressly provide a private right of action. The Supreme Court recognized an implied private right of action for injury caused by a violation of § 14(a), as implemented by Rule 14a-9, in J.I. Case Co. v. Borak, 377 U.S. 426, 84 S.Ct. 1555, 12 L.Ed.2d 423 (1964). In Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), the Court ruled that the causation requirement of Rule 14a-9 would be satisfied where the challenged proxy statement “was an essential link in the accomplishment of the transaction.” Id. at 385, 90 S.Ct. 616. In that case, the majority shareholder held just over one-half of the corporation’s outstanding shares, but the proposed merger could not be approved without the affirmative vote of two-thirds. Thus, the minority-shareholder plaintiffs were held to have satisfied the causation element because the merger could not have been authorized without the affirmative vote of at least some of the minority shares. The Mills Court left open the question of “whether causation could be shown where the management controls a sufficient number of shares to approve the transaction without any votes from the minority.” Id. at 385 n. 7, 90 S.Ct. 616. The Supreme Court answered that question in Virginia Bankshares, ruling that minority shareholders whose votes were not required for approval of the proposed freeze-out merger had failed to show that the materially misleading representations in the proxy statement violating Rule 14a-9 caused their injury. Although the plaintiff shareholders argued that the challenged proxy statement was an “essential link” within the meaning of Mills on the theory that their negative votes, though insufficient to defeat the merger, would have created sufficient bad publicity that the directors would not have proceeded with the merger, see 501 U.S. at 1100-01, 111 S.Ct. 2749, the Virginia Bankshares Court found that theory" }, { "docid": "22927213", "title": "", "text": "it is unnecessary to our decision on the issues before us. Whether error or not, the error was certainly harmless, given the jury’s explicit finding of but-for causation pursuant to interrogatory three. The district court’s understanding of mixed motive analysis may have resulted in a jury interrogatory form that was. over-extensive (so as to determine the multiple reasons underlying the adverse employment action in ques tion), but ultimately the jury rejected the option of returning a verdict based on mixed motive and instead found that absent the retaliatory motive, Rubinstein would have received his raise. D. Jury Instructions and Interrogatories Tulane next complains that the jury instructions and jury interrogatory forms were improper because they allowed the jury to consider mixed motive analysis. Challenges to jury instructions are reviewed to determine whether the court’s charge, as a whole, is a correct statement of the law and clearly instructs jurors on the legal principles at issue. See United States v. Moreno, 185 F.3d 465, 476 (5th Cir.1999). Further, and importantly to this case, review of jury instructions is for harmful error. Even if an instruction erroneously states the applicable law or provides insufficient guidance, this Court will not disturb the judgment unless the error could have affected the outcome of the trial. See Arleth v. FreeporC-McMoran Oil & Gas Co., 2 F.3d 630, 634 (5th Cir.1993); Colburn v. Bunge Towing, Inc., 883 F.2d 372, 377 (5th Cir.1989). This Court affords district courts great latitude in framing and structuring special interrogatories and reviews the formulation of jury interrogatories for abuse of discretion. EEOC. v. Manville Sales Corp., 27 F.3d 1089,1096 (5th Cir.1994). Tracking our discussion of this issue above, we will assume, arguendo, that the district court abused its discretion, by misapplying the law, in instructing the jury on mixed motive. However, as stated, this error was harmless, in that the jury made an explicit finding as to “but for” causation. As such, this issue does not require reversal. E. Punitive Damages The jury awarded Rubinstein $75,000 in punitive damages upon answering in the affirmative interrogatory 5, which asked: “Do you find" }, { "docid": "1557123", "title": "", "text": "or leave that for the jury. In either event, there must be an appropriate instruction covering the relevant state law. Next, regardless of how the legal standard is submitted to the jury, the court should instruct the jury that it should test the facts against that legal standard and decide whether there was a reasonable probability of ultimate success. This instruction should be given in connection with the charge on materiality. In sum, we hold that where a minority shareholder in a merger alleges a material misrepresentation or omission by the defendant in connection with the merger that deprived him of a state law injunctive remedy, a cause of action is asserted under rule 10b-5. For such information to be material, the plaintiff bears the burden of proving that had he received the correct information he would have had a reasonable probability of ultimate success in the state injunctive action. We remand to the district court to determine whether there was sufficient evidence to create a jury issue on materiality.' B. Causation Because of the possibility of a new trial, we will consider the remaining contentions of the defendants. The defendants claim that the district court erred by failing to give a special interrogatory on causation. We are not persuaded by this argument. The district court has wide latitude in deciding which issues should be covered by special interrogatories. Its action will only be overturned for an abuse of discretion. Here, the district court covered causation in its charge and felt a special interrogatory would not be necessary. General ly this is not an abuse of discretion. See Kornicki v. Calmar Steamship Corp., 460 F.2d 1134, 1139 (3d Cir. 1972). The defendants try to overcome this rule by labelling the question of whether the plaintiff could have gotten an injunction as a causation issue. They argue that because this was the crucial element of the plaintiff’s case, it was an abuse of discretion not to have a special interrogatory covering it. This argument is somewhat disingenuous given that a portion of the defendants’ brief treats this as a question of" }, { "docid": "22957438", "title": "", "text": "in fact of course there was not. When there is a presumption as there is here in that respect the defendant has the burden of going forward and persuading you by a fair preponderance of the evidence that the plaintiffs would have purchased the securities at the same price even had they known there was no double tax deduction; even had they known there would not be a bona fide loan; even had they known the other omissions that were in the letter. This is the defendant’s burden. App. at.2682a-83a. . In Kohn v. American Metal Climax, Inc., 458 F.2d 255, 269 (3d Cir.), cert. denied, 409 U.S. 874, 93 S.Ct. 120, 34 L.Ed.2d 126 (1972), we stated that “those alleging a violation of Rule 10b-5 have an obligation to show a fraudulent and material misrepresentation and that, to the extent a reliance factor is required, in the present context it is encompassed by the finding that the misrepresentation was material.” Similarly, in Kahan v. Rosenstiel, 424 F.2d 161, 173 (3d Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970), we stated that “[p]roof of reliance is not an independent element which must be alleged to establish a cause of action.” Both Kohn and Kahan were actions arising out of proxy statements issued during corporate combinations. Such cases present unique problems of demonstrating reliance not applicable to the present case. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 384-85, 90 S.Ct. 616, 621-22, 24 L.Ed.2d 593 (1970). We also note that the “purchaser-seller” rule of Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 95 S.Ct. 1917, 44 L.Ed.2d 539 (1975), would now preclude the Kahan suit, see 424 F.2d at 173, thereby circumventing major reliance-causation problems in that context. . The fifth circuit has recently noted that proof of reliance is necessary but not sufficient to establish causation: The causation requirement is satisfied in a Rule 10b-5 case only if the misrepresentation touches upon the reasons for the investment’s decline in value. If the investment decision is induced by misstatements or omissions that" }, { "docid": "23619456", "title": "", "text": "binding. Moreover, the issue of fairness is one of the issues which will be considered in the federal proceeding. Thus, we conclude that the district court did not abuse its discretion in giving collateral estoppel effect to the Commissioner’s decision on the fairness of the merger. III. “Fairness” and Injury Under § 14(e) Plaine contends that even if collateral estoppel effect is given to the Commissioner’s fairness determination, the mere fact that the merger price was determined to be fair is not fatal to her suit claiming that misstatements in the amended tender offer violated section 14(e). Defendants argue that even assuming that there was a violation of the proxy rules, the fact that the merger price was fair prevents Plaine from proving that she was injured by any misstatement or omission. Thus we must consider whether precluding Plaine from contesting the fairness of the terms of the merger in this securities litigation also precludes her from proving a cause of action under section 14(e). In Mills v. Electric Auto-Lite Co., 396 U.S. 375, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970), the Supreme Court considered the issue of fairness in a suit under section 14(a), 15 U.S.C. § 78n(a) (1982) — a section that is similar in purpose to section 14(e). See Klaus v. Hi-Shear Corp., 528 F.2d 225, 232 (9th Cir.1975). In Mills, the Court held that a finding that the merger was fair could not be used to foreclose the plaintiff’s attempt to show liability because “[t]here is no justification for presuming that the shareholders of every corporation are willing to accept any and every fair merger put before them____” 396 U.S. at 382 n. 5, 90 S.Ct. at 620 n. 5. Rather, the plaintiff succeeds in proving causation once the misstatement or omission has been shown to be “material.” Id. at 385, 90 S.Ct. at 622. Fairness may be considered, however, in determining the form of relief to which the shareholders may be entitled. Id. at 386, 90 S.Ct. at 622. Similarly, in Gerstle v. Gamble-Skogmo, Inc., 298 F.Supp. 66, 99-100 (E.D.N.Y.1969) modified on other grounds and" }, { "docid": "2756873", "title": "", "text": "the jury during the coverage phase of the trial. FNBL’s coverage claim was based on eight loan transactions. To recover under each loan, the jury had to find manifest intent and causation with respect to each loan transaction. We afford the district court great latitude in framing and structuring special interrogatories and we review the formulation of jury interrogatories for abuse of discretion. E.E.O.C. v. Manville Sales Corp., 27 F.3d 1089, 1096 (5th Cir.1994), cert. denied, - U.S. -, 115 S.Ct. 1252, 131 L.Ed.2d 133 (1995). Interrogatory 1 on the jury verdict form asked whether FNBL satisfied its burden of proof as to manifest intent “on any of the eight loans involved in this case.” Interrogatory 2 asked whether FNBL satisfied its burden of proof to show causation with re spect to “any of the eight loans involved in this ease.” The jury was required to answer Interrogatory 5 after answering “yes” to the first two interrogatories. Interrogatory 5 stated, “[i]n the blanks provided below, list the amount of loss, if any, you find that the bank has proved by a preponderance of the evidence that it suffered on each of the loans.” The district court also explained to the jury that FNBL was required to prove the elements of coverage on each of the eight loans. In determining the propriety of special interrogatories, we inquire into several specific factors: (i) whether, when read as a whole in conjunction with the general charge the interrogatories adequately presented the contested issues to the jury; (ii) whether the submission of the issues to the jury was “fair”; and (in) whether the “ultimate questions of fact” were clearly submitted to the jury. Barton’s Disposal Serv., Inc. v. Tiger Corp., 886 F.2d 1430, 1435 (5th Cir.1990) (quoting Dreiling v. General Elec. Co., 511 F.2d 768, 774 (5th Cir.1975)). The Sureties contend that the interrogatories did not require the jury to make an independent evaluation as to manifest intent and causation for each of the eight loans at issue. Therefore, the Sureties maintain that the interrogatories were incorrect, prejudicial and misled and confused the jury." }, { "docid": "1557125", "title": "", "text": "materiality. In any event, we feel that any problems of causation are adequately disposed of by applying objective materiality criteria. See Mills v. Electric Auto-Lite Co., 396 U.S. 375, 384-85, 90 S.Ct. 616, 24 L.Ed.2d 593 (1970). Assuming a charge in accordance with the previous section were given, because we view the question as one of materiality and because special interrogatory 1 required a finding as to materiality, we reject the defendants’ argument. C. Scienter 1. The defendants contend that the district court improperly charged the jury as to the defendants’ scienter. To prevail on a rule 10b-5 claim, the plaintiff must prove scienter. Ernst & Ernst v. Hochfelder, 425 U.S. 185, 96 S.Ct. 1375, 47 L.Ed.2d 668 (1976). In this circuit, a showing of recklessness satisfies the scienter requirement. See Coleco Industries, Inc. v. Berman, 567 F.2d 569 (3d Cir. 1977) (per curiam), cert. denied, 439 U.S. 830, 99 S.Ct. 106, 58 L.Ed.2d 124 (1978). In Coleco, we left open the definition of recklessness. See id. at 574. At trial, the defendants asked the district court to use the standard set forth in Sundstrand Corp. v. Sun Chemical Corp., 553 F.2d 1033 (7th Cir.), cert. denied, 434 U.S. 875, 98 S.Ct. 225, 54 L.Ed.2d 155 (1977), in defining recklessness for the jury. Sundstrand defines “recklessness” as “an extreme departure from the standards of ordinary care, . . . which presents a danger of misleading . . that is either known to the defendant or is so obvious that the actor must have been aware of it.” Id. at 1045 (citation omitted). The district court rejected this language, though expressly requested by the defendants, and gave the following charge: An innocent error or a mistake of judgment or even a negligent error are not enough to establish [scienter]. An act is done recklessly if it is done with indifference to the consequences. In McLean v. Alexander, 599 F.2d 1190 (3d Cir. 1979), we adopted the Sundstrand charge as the law of this circuit. Id. at 1197. We reasoned that Sundstrand was a proper reading of Ernst & Ernst because it" }, { "docid": "16929939", "title": "", "text": "SBA’s loss, in addition to its own, Fireman’s argued that the coverage of the bond did not extend to the SBA’s loss but was limited to that sustained by the Bank, the named insured. The District Court severed the claims of the SBA and so instructed the jury. Because of our disposition of this case, we do not reach these issues. This brings us to the only substantial claim of error, the Court’s jury charge and the answers to interrogatories (see note 8, supra). The trouble with this is that the Bank made not a single objection raising any of these claims. Its sole objection to the charge was: The Court: Does anybody have any objections? Bank’s Counsel: I have one; interrogatory one, on the question of proof of valid contract. I think the blanket bond policy has been admitted and I think that part is out of the picture. I think there is no doubt that there is a valid bond. The question of our claim would be covered by those other three. On appeal, the Bank urges that its right to trial by jury has been denied by refusal to give requested charges, submission of confusing interrogatories, insufficient instructions, and conflicting answers between (2) and (3). The basis for the Bank’s attack appears to be its inability to comprehend how the jury could find a loss by dishonest acts without finding coverage. Rule 49(a) refutes the Bank’s position. The focus of much praise, Rule 49(a) allows the trial judge wide latitude in submitting and framing written questions to the jury, Dreiling v. General Electric Co., 511 F.2d 768, 774 (5th Cir. 1975), and appellate review is limited to determining whether there was an abuse of discretion. Abernathy v. Southern Pacific Co., 426 F.2d 512 (5th Cir. 1970). In determining the adequacy of the form of special interrogatories, we consider “(i) whether, when read as a whole and in conjunction with the general charge the interrogatories adequately presented the contested issues to the jury, .. . (ii) whether the submission of the issues to the jury was ‘fair’, ..." }, { "docid": "16929940", "title": "", "text": "appeal, the Bank urges that its right to trial by jury has been denied by refusal to give requested charges, submission of confusing interrogatories, insufficient instructions, and conflicting answers between (2) and (3). The basis for the Bank’s attack appears to be its inability to comprehend how the jury could find a loss by dishonest acts without finding coverage. Rule 49(a) refutes the Bank’s position. The focus of much praise, Rule 49(a) allows the trial judge wide latitude in submitting and framing written questions to the jury, Dreiling v. General Electric Co., 511 F.2d 768, 774 (5th Cir. 1975), and appellate review is limited to determining whether there was an abuse of discretion. Abernathy v. Southern Pacific Co., 426 F.2d 512 (5th Cir. 1970). In determining the adequacy of the form of special interrogatories, we consider “(i) whether, when read as a whole and in conjunction with the general charge the interrogatories adequately presented the contested issues to the jury, .. . (ii) whether the submission of the issues to the jury was ‘fair’, ... and (iii) whether the ‘ultimate questions of fact’ were clearly submitted to the jury.” Dreiling v. General Electric Co., 511 F.2d at 774 (citations omitted). To be valid, an objection to an interrogatory or the lack thereof must be made prior to the retiring of the jury, or the objection is waived. If a party fails to request submission of an issue, the court is deemed to have made a finding in accord with the judgment. F.R.Civ.P. 49(a). The Bank at trial objected specifically to Interrogatory (1) as unnecessary. Assuming this was error, since the jury answered this question in the Bank’s favor, there was no injury and no reason to reverse. As to Interrogatory (3), the Bank made no specific objection to it until on motion for new trial and on appeal, thereby waiving any objection. In fact, before the jury retired, the Bank indicated that it believed the other three questions covered its claims. Had an adequate objection been made that, as framed, the interrogatory was submitting a question of law, our result" }, { "docid": "23426014", "title": "", "text": "the record, stating distinctly the matter objected to and the grounds for the objection.” Fed.R.Civ.P. 51(c)(1); see Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d at 141 n. 2. Defendants failed to comply with these requirements. Even if their objections were properly preserved, however, defendants cannot demonstrate abuse of discretion. a. Conflating Policy and Causation Elements Question Two on the special verdict form asked the jury: “Was the violation of [Cash’s] constitutional rights proximately caused by a custom, policy, or practice of the County of Erie?” Defendants contend that they properly objected to this question when counsel stated: “The problem I have with it is this is a combination that combines the liability and the causation in one question.” Trial Tr. at 907. Counsel’s statement, however, must be viewed in context, which was to urge substitution of defendants’ own proposed version of Question Two: “Did the County of Erie and Sheriff Patrick Gallivan by virtue of a policy or custom violatef ] the plaintiffs constitutional rights?” Id. As the district court recognized, the alternative formulation itself implicitly combined the policy and causation elements of Cash’s municipal liability claim: “I think that is essentially what [the court’s proposed Question Two] says.” Id. Defendants never clarified that they sought to have the policy and causation elements of a § 1983 claim put to the jury in two distinct questions. Certainly, they never presented the district court with proposed separate interrogatories. See generally Tuttle v. Equifax Check, 190 F.3d 9, 15-16 (2d Cir.1999) (holding objection to composite verdict form waived where plaintiff “never asked that the district court prepare separate interrogatories for each prong” and “never objected to the charge on this ground”). Accordingly, we conclude that defendants’ objection was not stated with sufficient clarity to preserve it for appellate review. Even if we were to conclude otherwise, defendants cannot show that when Question Two is considered in light of the jury charge there was any confusion as to Cash’s burden to prove both policy and causation. The district court made this' clear when it identified policy and causation as distinct elements" }, { "docid": "2756874", "title": "", "text": "the bank has proved by a preponderance of the evidence that it suffered on each of the loans.” The district court also explained to the jury that FNBL was required to prove the elements of coverage on each of the eight loans. In determining the propriety of special interrogatories, we inquire into several specific factors: (i) whether, when read as a whole in conjunction with the general charge the interrogatories adequately presented the contested issues to the jury; (ii) whether the submission of the issues to the jury was “fair”; and (in) whether the “ultimate questions of fact” were clearly submitted to the jury. Barton’s Disposal Serv., Inc. v. Tiger Corp., 886 F.2d 1430, 1435 (5th Cir.1990) (quoting Dreiling v. General Elec. Co., 511 F.2d 768, 774 (5th Cir.1975)). The Sureties contend that the interrogatories did not require the jury to make an independent evaluation as to manifest intent and causation for each of the eight loans at issue. Therefore, the Sureties maintain that the interrogatories were incorrect, prejudicial and misled and confused the jury. FNBL argues that the Sureties discussed this possible confusion during closing argument and explained that the jury was obligated to consider each loan separately. Although these interrogatories were not as clear as possible, the record shows that the jury apparently followed the instructions given when they returned a verdict awarding zero for one of the eight loans. We find that these interrogatories did not prejudice the jury’s ability to reach a decision in this case. The interrogatories met the three part Dreil-ing test and finding no abuse of discretion, we affirm the district court’s judgment on these grounds. CONCLUSION For the foregoing reasons, we hold that the district court erred in submitting FNBL’s bad faith claim to the jury. Therefore, we reverse the judgment awarding FNBL consequential damages on its bad faith claim and render judgment that FNBL take nothing on this claim. We also reverse the district court’s judgment awarding attorney’s fees arising from FNBL’s bad faith claim and render judgment that FNBL take nothing on such claim. As to the remaining claims, we" }, { "docid": "19035385", "title": "", "text": "lack of unanimity in the jury’s verdict may be hidden under the form in which the questions were submitted to the jury. As footnote 2 shows, the jury was asked whether defendant was negligent in any or all of three respects, design, adjustment, or instruction. The next question required the jury to state, assuming an affirmative answer to the first, whether such negligence was the proximate cause of plaintiff’s injury. Defendant contends that the causation question, too, should have been broken down into three parts, corresponding to the three items of possible negligence, so that the jury would have been required to be precise in its finding on causation. Otherwise, the argument runs, four jurors may have thought the negligent design was the proximate cause, four others may have relied on the negligent adjustment, and the final four on the negligent instructions. We are directed to a Wisconsin case, Fontaine v. Fontaine, 1931, 205 Wis. 570, 238 N.W. 410, as authority for the proposition. The trouble with defendant’s position is that the Wisconsin statute requires the submission of special interrogatories under certain circumstances. That statutory mandate cannot bind procedural matters in the federal courts, which are governed as to special verdicts and interrogatories by Rule 49 of the Federal Rules of Civil Procedure. Tillman v. Great American Indemnity Co., 7 Cir., 1953, 207 F.2d 588, 593; Lang v. Rogney, 8 Cir., 1953, 201 F.2d 88, 97. Rule 49 clearly leaves the matter of the form of a special verdict and interrogatories to the sound discretion of the trial court. Norfolk Southern Ry. v. Davis Frozen Foods, Inc., 4 Cir., 1952, 195 F.2d 662, second appeal, 4 Cir., 204 F.2d 839, certiorari denied, 1953, 346 U.S. 824, 74 S.Ct. 41; Mourikas v. Vardianos, 4 Cir., 1948, 169 F.2d 53. The trial court certainly did not abuse its discretion in denying defendant’s request here. Furthermore, the relevant legal points were thoroughly laid out in the court’s charge, so that what defendant suggests could not have occurred unless the jurors disregarded their instructions. We have examined the other contentions of defendant and find" }, { "docid": "3166508", "title": "", "text": "the jury that “[ajetionable fraud may result from the concealment of material facts,” 17A Tr. 148, the written instruction on the special verdict form only referred to fraudulent misrepresentation. Since concealment was not presented on the written interrogatory, appellants argue, the theory was not emphasized sufficiently to cause the jury to afford it due consideration. We do not find this to constitute reversible error. The concealment instruction was given, although orally. As such, Ajax Hardware Manufacturing Corp. v. Industrial Plants Corp., 569 F.2d 181 (2d Cir. 1977), a case relied upon by appellants, where two of that plaintiff’s three theories were omitted from both the oral charge and the written interrogatories, is not applicable. Moreover, “. . . it is not error to refuse to submit a question or instruction where the issue is adequately covered by other questions or instructions.” Perzinski v. Chevron Chemical Co., 503 F.2d 654, 660 (7th Cir. 1974). “The district court has wide latitude in deciding which issues should be covered by special interrogatories. Its action will only be overturned for an abuse of discretion.” Healey v. Catalyst Recovery of Pennsylvania, Inc., 616 F.2d 641, 648 (3d Cir. 1980). In Healey, the Third Circuit found that the trial court’s decision to leave its instruction on causation to the oral charge rather than include it in the written interrogatory was not an abuse of discretion. 616 F.2d at 648-49. Recalling our earlier acknowledgment of a trial court’s function to compact lengthy oral instructions into comprehensible written interrogatories containing the essence thereof, we note that a written instruction that detailed both the concealment and affirmative misrepresentation theories might well have been fraught with superfluity. As appellants themselves state in their reply brief, There is no bright line dividing fraud by affirmative misrepresentation from fraud by concealment: “where failure to disclose a material fact is calculated to induce a false belief, the distinction between concealment and misrepresentation is tenuous. Both are fraudulent.” Appellants’ Reply Brief at 17 n. 15, quoting 37 Am.Jur.2d, Fraud and Deceit § 144, at 197. The jury was well apprised of appellants’ fraud theories." }, { "docid": "23244994", "title": "", "text": "and cleanout door was open and obvious. See Fed.R.Civ.P. 49. Because of this oversight, Deere contends that there is no way to determine how the jury resolved the dispos-itive issue of open and obvious danger. \"The submission of special interrogatories lies within the discretion of the trial court and will not be reversed absent an abuse of discretion.\" Firestone Tire & Rubber Co. v. Pearson, 769 F.2d 1471, 1483 (10th Cir.1985). Once a trial court elects to use such interrogatories on a given element of a plaintiff's claim, all material issues must be included in the interrogatories. Menne v. Celotex Corp., 861 F.2d 1453, 1473 (10th Cir.1988). On the other hand, when jury instructions comprehensively cover all material issues in the case, a district court does not abuse its discretion in denying a request for special interrogatories. Millers' Nat'l Ins. Co. v. Wichita Flour Mills Co., 257 F.2d 93, 101 (10th Cir.1958). See, e.g. Pearson, 769 F.2d at 1483 (no abuse of discretion in denying requested special interrogatories where \"the instructions given adequately guided the jury's deliberations\"); Edwards v. Sears, Roebuck & Co., 512 F.2d 276, 294-95 (5th Cir.1975) (district court did not abuse its discretion in products liability action by declining to submit special interrog-atones concerning theory of recovery); Perzinski v. Chevron Chem. Co., 503 F.2d 654, 660 (7th Cir.1974) (district court did not err in refusing to submit special interrogatory on plaintiff's alleged contributory negligence where issue adequately was covered in other instructions); Rude v. Northwestern Nat'l Cas. Co., 245 F.2d 778, 779-81 (7th Cir.1957) (in view of court's instruction that speed was factor to be considered in deciding whether defendant was negligent in automobile accident case, district court did not err in declining to submit special interrogatory on question of speed). Deere places principal reliance on this court's holding in Martinez v. Union Pac. R.R. Co., 714 F.2d 1028, 1032 (10th Cir.1983), in arguing that it was entitled to a special interrogatory on the open and obvious question. Martinez was a personal injury action arising out of a collision between an automobile and a freight train. The" } ]

[ { "docid": "22050412", "title": "", "text": "right of a party to select counsel of his choice to be a matter of significant importance, which will not be disturbed unless a specifically identifiable impropriety has occurred. See also Whiting Corp. v. White Machinery Corp., 567 F.2d 713 (7th Cir. 1977) (no disqualification). A disqualification order discredits the bar generally and the individual attorneys particularly. Thus, while there can be no hesitation to disqualify where impropriety has occurred, as in the cases cited by the parties upholding disqualification— namely, Schiessle v. Stephens, 717 F.2d 417 (7th Cir. 1983) and LaSalle National Bank v. County of Lake, 703 F.2d 252 (7th Cir.1983), judges must exercise caution not to paint with a broad brush under the mis guided belief that coming down on the side of disqualification raises the standard of legal ethics and the public’s respect. The opposite effects are just as likely — encouragement of vexacious tactics and increased cynicism by the public. When applying Seventh Circuit attorney disqualification law, we must recognize, as does that circuit, that: [Disqualification, as a prophylactic device for protecting the attorney-client relationship, is a drastic measure which courts should hesitate to impose except when absolutely necessary. (Emphasis added.) Freeman, 689 F.2d at 721. Furthermore, motions for attorney disqualification “should be reviewed with extreme caution for they can be misused as techniques of harassment.” 689 F.2d at 722. Most importantly, a court must be “guided by the awareness of the delicate balance which must be maintained between the right of an individual to retain counsel of his free choice and the necessity that the Court uphold ... ethical standards____” Whiting Corp., 567 F.2d at 715 (emphasis added). B. Presumptions Underlying Disqualification In ruling on a disqualification motion directed to an individual and a firm, all cases which we have reviewed in the Seventh Circuit show that the court analyzes disqualification of the firm separately from the individual and carefully weighs each step in each disqualification. However, the movant for disqualification has several presumptions working in his favor. First, proof by the movant of a base fact, the existence of a so-called “substantial relationship”" } ]

[ { "docid": "10234930", "title": "", "text": "that Zachair’s counsel violated Maryland Rule of Professional Conduct 4.2, and culpably aided and abetted Frost’s violation of Rules 1.6(b) and 1.9, by engaging in ex parte communication without the defendants’ counsel’s presence or consent, and under circumstances made possible because plaintiffs counsel proceeded with abandon to commence discovery in direct contravention of this Court’s Local Rules, which provide that discovery in a case of this sort is stayed, in the absence of agreement among counsel, until the Court issues a scheduling order. For this conduct, the defendants seek disqualification of Zachair’s counsel and suppression of wrongfully obtained material. “Federal courts have inherent authority to discipline attorneys who appear before them for conduct deemed inconsistent with ethical standards imposed by the court.” MMR/Wallace Power & Indus. v. Thames Associates, 764 F.Supp. 712, 717 (D.Conn.1991); see Tessier v. Plastic Surgery Specialists, Inc., 731 F.Supp. 724, 729 (E.D.Va.1990) (“The Court is charged with the duty and responsibility of supervising the conduct of attorneys who appear before it.”); see also Plant Genetic Systems, NV v. Ciba Seeds, 933 F.Supp. 514, 517 (M.D.N.C.1996) (“A motion to disqualify an attorney is addressed to the discretion of the district court----”). Under Local Rule 704, I must “apply the Rules of Professional Conduct as they have been adopted by the Maryland Court of Appeals.” See Blumenthal Power Co. v. Browning-Ferris, Inc., 903 F.Supp. 901 (D.Md.1995). A motion to disqualify counsel is a “serious matter,” Plant Genetic Systems, 933 F.Supp. at 517, which must be decided on a case-by-ease basis. See Buckley v. Airshield Corp., 908 F.Supp. 299, 304 (D.Md.1995). This is so because two significant interests are implicated by a disqualification motion: “the client’s free choice of counsel and the maintenance of the highest ethical and professional standards in the legal community.” Tessier, 731 F.Supp. at 729; Buckley, 908 F.Supp. at 304. Nevertheless, “the guiding principle in considering a motion to disqualify counsel is safeguarding the integrity of the court proceedings.” Plant Genetic Systems, 933 F.Supp. at 517; see Hull v. Celanese Corporation, 513 F.2d 568, 572 (2d Cir.1975) (finding that a party’s free choice of counsel" }, { "docid": "10522407", "title": "", "text": "his firm. CONCLUSION For the four reasons just recited, IT IS HEREBY DETERMINED AND ORDERED: 1. Fafinski & Wallrich, P.A., is disqualified from serving as special counsel to the Plaintiff under 11 U.S.C. § 327(e), Fed. R.Bankr.P. 2014(a), and Minn.R.Prof.Cond. 1.9 and 3.7. 2. Fafinski & Wallrich, P.A, and its attorneys are removed as counsel for the Plaintiff for this adversary proceeding. . This recitation of facts applies to all of the theories argued by the Defendants. Other, more particular findings will be recited later in the discussion on individual theories. . It is not clear from the record whether Crowley voted at this meeting, or was even allowed to do so. . At the time, Jon R. Hawks, Esq., represented TransAmerica. . The record does not reveal whether Crowley signed this before or after the Gunberg-instigated board meeting. .The phrase quoted from the itemization can be read as acknowledging the satisfaction of the debt in the hands of the transferee. On the other hand, the text later refers to the repayment of \"the Loan amounts previously advanced\" as a prerequisite for other events, and does not specify the origin or nature of those \"amounts.” . Another attorney had represented Gunberg in both phases of her bankruptcy case. . That resolution was adverse to Gunberg; via an order and judgment entered on March 30, 1995 in ADV 4-93-455, Judge Nancy C. Dreher denied her a discharge under four different provisions of 11 U.S.C. § 727(a). She did so on three conclusions relevant to the matter at bar. The first was that Gunberg had no credibility whatsoever as a witness. The second was that she and Rieser had manipulated the French Accent's finances to extract hundreds of thousands of dollars to support their opulent lifestyle. The third was that Gunberg had attempted to manipulate the process of her own bankruptcy case by fraudulently filing false schedules, and by professing to be unable to explain her pre-petition loss of valuable assets. (The assets included a large portion of her shares of stock in the Debt- or.) . It is not clear whether" }, { "docid": "10522395", "title": "", "text": "connections — that with Gunberg — -gave rise to a direct disqualifying conflict for this litigation. The Bankruptcy Court may, in its discretion, disqualify counsel, or deny compensation, as a sanction for failure to make the disclosure required by Rule 2014(a). In re Pierce, 809 F.2d at 1362-1363; In re Rothwell, 159 B.R. 374, 378-379 (Bankr.D.Mass.1993). This sanction is particularly appropriate where the undisclosed connections are material to counsel’s basic qualification under §§ 327(a) and 327(e). F&W’s failure to disclose the connections previously noted is a separate basis for its disqualification — and, in the case of the connections with Gunberg, a cumulative one. In re Leslie Fay Cos., Inc., 175 B.R. 525, 533 (Bankr.S.D.N.Y.1994) (citing In re Rusty Jones, Inc., 134 B.R. 321, 345 (Bankr.N.D.Ill.1991)). MINNESOTA RULES OF PROFESSIONAL CONDUCT The bar of this court consists of those attorneys licensed to practice before the United States District Court for this district. Former Loc.R.Bankr.P. (D.Minn.) 103(a). In turn, the United States District Court for the District of Minnesota has adopted the Minnesota Rules of Professional Conduct, as prescribed by the Supreme Court of Minnesota. Loc.R. (D.Minn.) 83.6(d); Bieter Co. v. Blomquist, 132 F.R.D. 220, 223 (D.Minn. 1990); North Star Hotels Corp. v. Mid-City Hotel Assoc., 118 F.R.D. at 110-111. The Defendants argue that state-law principles disqualify F&W, under two different theories. They base both arguments on allegations by Crowley and Petrulo. Crowley’s is that, when presented with TransAmerica’s May 26, 1994 proposal for the crediting of its funding obligation, he sought Wallrich’s advice as to whether he should agree to it, and Wallrich told him to go ahead. Petrulo’s is that he consulted Wallrich before signing all four of the promissory notes, July, 1994, as to their conformity with TransAmerica’s duties and the Debtor’s rights, and that Wallrich advised him to sign them. The Defendants contrast these statements with the fact that the Plaintiff, in pleadings drafted by F&W, now attacks TransAmerica’s proposal as a breach of the plan and its effectuation as the cause of the Debtor’s failure. 1. Minn.R.Prof.Cond. 1.9 The Defendant’s first theory is that F&W is" }, { "docid": "10522384", "title": "", "text": "to serve as agent or attorney for any individual or entity holding such an adverse interest. In re Roberts, 46 B.R. at 827. Given the fact-specific nature of parties’ interests and their alignments, however, “no general rule of simple application [of § 327(e)] can be gleaned.In re Tidewater Mem. Hosp., Inc., 110 B.R. 221, 228 (Bankr.E.D.Va.1989). Each case must finally turn on its own circumstances, based on a common-sense divination of adversity or commonality. Id. See also In re Mican Homes, Inc., 179 B.R. 886, 888 (Bankr.E.D.Mo.1995). In the process of identification, however, potential conflicts on the subject dispute are just as disqualifying as actual, current ones. In re Nat’l Distrib. Whse. Co., Inc., 148 B.R. at 561. Regardless of whom a trustee has identified as an opponent, if a past or present client of proposed counsel was involved in any way with the events that gave rise to the dispute, or could otherwise be the subject of a claim based on those events, the client has an interest adverse to the estate and disqualification results. Several courts have applied this rule in denying approval of proposed employment under § 327(e), or in disqualifying counsel after the fact of employment. E.g., In re Mican Homes, Inc., 179 B.R. at 888 (client was codefendant to debtor, with some overlap of financial exposure); In re Argus Group 1700, Inc., 199 B.R. 525, 531-532 (Bankr.E.D.Pa.1996) (client was insider in control of debtor, and was real party-in-interest to possible proceedings to oust debtor’s management); In re Ginco, Inc., 105 B.R. 620, 621-622 (D.Colo.1988) (client was insider of debtor, codefendant in subject lawsuit, and “potential target for claims of corporate mismanagement” of debtor); In re F & C Internat’l, Inc., 159 B.R. 220, 222 (Bankr.S.D.Ohio 1993) (client was potential but unsued defendant to claims asserted by estate). In all of these holdings, there is a common theme: all professionals for a bankruptcy estate must tender undivided loyalty and provide untainted advice and assistance in furtherance of their fiduciary responsibilities, In re Bolton-Emerson, Inc., 200 B.R. at 732 (quoting Rome v. Braunstein, 19 F.3d 54, 58" }, { "docid": "2761071", "title": "", "text": "Conduct Rule 1.9(a) (1983). Among other reasons, this model rule was designed to “give the court confidence that a lawyer will not use unfairly the secrets gained in prior employment.” Weider, 1989 WL 49368, at *2, 1989 U.S.Dist. LEXIS 4693, at *7. This Circuit has reviewed attorney disqualification motions under Canon 4 of the Model Code of Professional Responsibility. See, e.g., Cheng v. GAF Corp., 631 F.2d 1052, 1059 (2d Cir.1980), vacated on other grounds and remanded, 450 U.S. 903, 101 S.Ct. 1338, 67 L.Ed.2d 327 (1981)); NCK Org. Ltd. v. Bregman, 542 F.2d 128, 129 n. 2 (2d Cir.1976). Under Canon 4, courts apply a three-part test to determine whether an attorney should be disqualified: (1) is the moving party a former client of the adverse party's counsel; (2) is there a substantial re'ationship between the subject matter of the counsel's prior representation of the moving party and the issues in the present suit; and (3) did the attorney whose disqualification is sought have access to, or was he likely to have had access to, relevant privileged information in the course of his prior representation of the client? See Evans v. Artek Systems Corp., 715 F.2d 788, 719 (2d Cir.1983) (citing Cheng, 631 F.2d at 1059); Emle Industries, Inc. v. Patentex, Inc., 478 F.2d 562, 570-71 (2d Cir.1973); Keoseian v. Von Kaulbach, 707 F.Supp. 150, 151 (S.D.N.Y.1989); T.C. Theatre Corp. v. Warner Bros. Pictures, Inc., 113 F.Supp. 265, 268 (S.D.N.Y.1953) (Weinfeld, J.). When applying this test, courts must look with \"painstaking\" care at the facts, United States v. Standard Oil Co., 136 F.Supp. 345, 367 (S.D.N.Y.1955), maintaining a balance between a party's right to preferred counsel and the need to \"preserve the integrity of the adversary process.\" Board of Education v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979). Cf. Ernie, 478 F.2d at 564-65 (referring to the \"need to maintain the public's trust in the integrity of the Bar\"). A. Attorney Client Relationship The first element of the test for disqualification requires plaintiffs to demonstrate that they were formerly clients of Kronish Lieb. Defendants concede that this element is" }, { "docid": "10522418", "title": "", "text": "was in large part a legal issue, appropriately entrusted to the Debtor’s Chapter 11 counsel. One can understand why Crowley may have wanted to check with counsel as to whether TransAmerica's proffer conformed to the plan, before formally binding the Debtor to it. .As Petrulo and the Defendants point out, the sequence and circumstances under which he executed the four notes seem not to make sense, unless he did so on advice that TransAmerica’s $275,000.00 commitment had been fully met by the terms proffered to Crowley. Otherwise, the post-confirmation advances totalling $22,500.00 would have been rolled into the obligation evidenced by the $275,000.00 note. Wallrich does not specifically deny giving such advice to Petrulo. More generically, he avers: At no time did I represent to any party that pre-confirmation funding could be applied to the post-confirmation obligation. . This result, admittedly, is somewhat novel in at least two ways. The separation of client status between the successive bankruptcy estates may be unprecedented as a holding, however fact-bound its genesis. Too, motions for disqualification under this theory are ordinarily and most properly brought by the former client in question, Bieter Co. v. Blomquist, 132 F.R.D. at 224, and not by an opponent in the litigation. F&W, however, did not challenge the Defendants' standing to raise this theory. And, in the last instance, the sensitivity of the backdrop should overcome any fussiness on these tangential aspects. Promoting the integrity of a trustee's fiduciary status is just that important: A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate. Uncompromising rigidity has been the attitude of courts of equity when petitioned to undermine the rule of undivided loyalty by the 'disintegrating erosion’ of particular exceptions. Meinhard. v. Salmon, 249 N.Y. 458, 464, 164 N.E. 545, 546 (1928) (Cardozo, J.). . Because the accusation that makes counsel a witness comes directly from the fact statement of a party-opponent, the" }, { "docid": "692162", "title": "", "text": "the client as to confidentiality and representation must be rigidly enforced, the courts have seen no need to fashion a rule that would prevent an attorney from ever representing an interest adverse to that of a former client. The proper test in determining whether the duty of fair representation and confidentiality has been violated is the “substantial relationship” test. Wilson P. Abraham Construction Corp. v. Armco Steel Corp., 559 F.2d 250 (5th Cir. 1977); In re Yarn Processing Patent Validity Investigation, 530 F.2d 83 (5th Cir. 1976). A party seeking disqualification must prove not only the existence of a prior attorney-client relationship but also that there is a genuine threat that confidences revealed to this former counsel will be divulged to his present adversary. Duncan v. Merrill Lynch, Pierce, Fenner & Smith, 646 F.2d 1020 (5th Cir. 1981). Before reaching the merits of the defendant’s motion, however, the court must first determine whether the defendant has essentially waived its right to obtain disqualification because of its failure to raise the issue while the case was pending in the state court of Tennessee. A motion to disqualify should be made with reasonable promptness after a party discovers the facts which lead to the motion. Central Milk Producers Co-op v. Sentry Food Stores, 573 F.2d 988 (7th Cir. 1978). See also Redd v. Shell Oil Co., 518 F.2d 311 (10th Cir. 1975). A litigant may not delay filing a motion to disqualify in order to use the motion later as a tool to deprive his opponent of counsel of his choice after sub stantial preparation of the case has been completed. Central Milk Producers Co-op v. Sentry Food Stores, supra. This court is troubled by the admissions made by defendant General Motors that it was aware that Mr. Schulman had acted as counsel for General Motors prior to his representation of the plaintiffs in the instant case as early as October of 1979, when the instant case was filed in the Tennessee state court. Mr. Leitner intimates in his affidavit that his unfamiliarity with the law of disqualification constitutes an adequate excuse" }, { "docid": "10522406", "title": "", "text": "both Fafinski and Wall-rich have an intimate and manifold knowledge of the relevant facts. It also complains that the estate may have to forgo the prosecution of this matter were it disqualified; it cites the alleged complexity of the facts, the estate’s lack of means to fund the litigation through successor counsel, and the asserted prospect that no other law firm would undertake the financial risk of the engagement. The record, however, does not bear out any of these points. As the length of this order suggests, the facts may not be simple — but neither are they incapable of mastery with some reasonable attention. There is no showing that the Plaintiff even tried to enlist other counsel before suing this out, and certainly no proof that another law firm could not or would not take over the litigation now. One cannot conclude that disqualifying F&W would impose substantial hardship on the estate. The inherent conflict of credibility between Wallrich’s status as advocate and his status as witness, then, is a fourth reason to disqualify his firm. CONCLUSION For the four reasons just recited, IT IS HEREBY DETERMINED AND ORDERED: 1. Fafinski & Wallrich, P.A., is disqualified from serving as special counsel to the Plaintiff under 11 U.S.C. § 327(e), Fed. R.Bankr.P. 2014(a), and Minn.R.Prof.Cond. 1.9 and 3.7. 2. Fafinski & Wallrich, P.A, and its attorneys are removed as counsel for the Plaintiff for this adversary proceeding. . This recitation of facts applies to all of the theories argued by the Defendants. Other, more particular findings will be recited later in the discussion on individual theories. . It is not clear from the record whether Crowley voted at this meeting, or was even allowed to do so. . At the time, Jon R. Hawks, Esq., represented TransAmerica. . The record does not reveal whether Crowley signed this before or after the Gunberg-instigated board meeting. .The phrase quoted from the itemization can be read as acknowledging the satisfaction of the debt in the hands of the transferee. On the other hand, the text later refers to the repayment of \"the Loan" }, { "docid": "20434194", "title": "", "text": "that some specifically identifiable impropriety” actually occurred, and where the public interest in requiring professional conduct by an attorney outweighs the competing interest of allowing a party to retain counsel of his choice. Id. (quoting Woods v. Covington County Bank, 537 F.2d 804, 810 (5th Cir.1976)); accord, Moses v. Sterling Commerce (Am.), Inc., 122 Fed.Appx. 177, 183 (6th Cir.2005). While motions to disqualify are legitimate and necessary to protect the integrity of judicial proceedings and the ethics of the bar, courts must be vigilant in viewing motions to disqualify counsel, as the “ability to deny one’s opponent the services of capable counsel is a potent weapon.” Manning v. Waring, Cox, James, Sklar & Allen, 849 F.2d 222, 224 (6th Cir.1988). The court must therefore balance the interest of the court and the public in upholding the integrity of the legal profession against the right of a party to retain counsel of its choice. Id. at 225. A decision to disqualify counsel must be based on a factual inquiry conducted in a manner allowing appellate review. General Mill Supply Co. v. SCA Servs., 697 F.2d 704, 710 (6th Cir.1982). The Sixth Circuit will review this court’s decision on motion to disqualify for an abuse of discretion. See Moses, 122 Fed.Appx. at 183. Under the analysis set forth above, plaintiffs’ motions to disqualify Pepper Hamilton as defense counsel raise two separate issues. First, the court must determine whether Pepper Hamilton’s representation of Huntington National Bank in this litigation is a violation of the firm’s ethical duties. If so, the second question is the appropriate remedy. The court will consider each issue in turn. I. Pepper Hamilton’s Representation of Huntington National Bank in This Litigation is a Clear Breach of Its Ethical Duties A. Violation of Rule 1.7(a) Ethical rules involving attorneys practicing in the federal courts are ultimately questions of federal law. The federal courts, however, are entitled to look to the state rules of professional conduct for guidance. In re Snyder, 472 U.S. 634, 645 n. 6, 105 S.Ct. 2874, 86 L.Ed.2d 504 (1985); see National Union Fire Ins. Co. of" }, { "docid": "10522396", "title": "", "text": "Conduct, as prescribed by the Supreme Court of Minnesota. Loc.R. (D.Minn.) 83.6(d); Bieter Co. v. Blomquist, 132 F.R.D. 220, 223 (D.Minn. 1990); North Star Hotels Corp. v. Mid-City Hotel Assoc., 118 F.R.D. at 110-111. The Defendants argue that state-law principles disqualify F&W, under two different theories. They base both arguments on allegations by Crowley and Petrulo. Crowley’s is that, when presented with TransAmerica’s May 26, 1994 proposal for the crediting of its funding obligation, he sought Wallrich’s advice as to whether he should agree to it, and Wallrich told him to go ahead. Petrulo’s is that he consulted Wallrich before signing all four of the promissory notes, July, 1994, as to their conformity with TransAmerica’s duties and the Debtor’s rights, and that Wallrich advised him to sign them. The Defendants contrast these statements with the fact that the Plaintiff, in pleadings drafted by F&W, now attacks TransAmerica’s proposal as a breach of the plan and its effectuation as the cause of the Debtor’s failure. 1. Minn.R.Prof.Cond. 1.9 The Defendant’s first theory is that F&W is disqualified due to a “former client conflict of interest.” Under Minnesota law, this argument is governed by Minn.R.Prof.Cond. 1.9: A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client consents after consultation; or (b) use information relating to the representation to the disadvantage of the former client except as Rule 1.6 would permit with respect to a client or when the information has become generally known. This rule, and those like it, reflect the precept that an attorney’s fidelity to a client is always to prevail over a future opportunity to be retained by a different client that has conflicting interests on the subject matter of the same retention. It is designed to prevent adverse use of the former client’s confidences; breach of the former client’s continuing trust; 'and, more remotely, attorney abuse of a client in anticipation of future" }, { "docid": "14522634", "title": "", "text": "former client obtained no information that the lawyer could use in the subsequent action. The instant case, however, does not require such a burden shifting. Therefore, this Court will not disqualify Kenyon & Kenyon under R.P.C. 1.9(a)(2). C. Disqualification Under R.P.C. 1.9(b) R.P.C. 1.9(b) incorporates R.P.C. 1.7(c) which provides that a court should disqualify an attorney even when there is no “actual conflict” between successive representations if the public would perceive that the attorney’s- successive representations create an “appearance of impropriety.” Under R.P.C. 1.7(c) an appearance of impropriety exists: in those situations in which an ordinary knowledgeable citizen acquainted with the facts would conclude that the [successive] representation poses substantial risk of disservice to either the public interest or the interest of one of the clients. The New Jersey Supreme Court has cautioned that the “appearance of impropriety must be something more than a fanciful possibility. It must have a reasonable basis.” Dewey, 536 A.2d at 250-51 (quoting Higgins v. Advisory Comm. on Professional Ethics, 73 N.J. 123, 129, 373 A.2d 372 (1977)). For example, in Dewey the court found that an appearance of impropriety existed. In Dewey defendants brought a motion to disqualify the law firm employed by the plaintiff because one of the attorneys at the law firm that represented plaintiff formerly had been an associate at a law firm retained by the defendant. 536 A.2d at 244-245. The court noted that the former client accounted for a large portion of his former law firm’s business. Moreover, the court explained that the law firm for which the attorney formerly was employed, handled cases substantially related to the case at issue for about five years. Finally, the court found that the attorney himself had been active in some of these substantially related matters. Id. at 250. In the case at bar, defendants have not provided this Court with a “reasonable basis” for this Court to find that an “ordinary citizen acquainted with the facts “would conclude that the [successive] representation poses substantial risk of disservice to either the public interest or the interest of one of the clients.” In" }, { "docid": "18476588", "title": "", "text": "became aware that Rider Bennett had represented the City of Columbia Heights in the preceding lawsuit. See Affidavit of Terrance W. Moore at ¶ 7. Subsequently, Defendants moved to disqualify Mr. White because of his previous employment with Rider Bennett. II. ANALYSIS A. Introduction Defendants contend Mr. White’s prior association with a firm which represented the City of Columbia Heights constitutes a conflict of interest requiring the disqualification of Mr. White from representing Plaintiffs in this litigation. Specifically, Defendants contend that Mr. White’s representation of Plaintiffs is a violation of Rule 1.9(a) of the Minnesota Rules of Professional Conduct, and that Mr. White should be disqualified per Jenson v. Touche Ross, 335 N.W.2d 720 (Minn.1983). A fundamental responsibility of any trial court is the supervision of the attorneys who appear and practice before it. See Cohen v. Hurley, 366 U.S. 117, 123-24, 81 S.Ct. 954, 958-59, 6 L.Ed.2d 156 (1961), Federal Deposit Ins. Corp. v. Amundson, 682 F.Supp. 981 (D.Minn.1988). That responsibility is carried out consistent with the proviso that “[b]ecause of the potential for abuse by opposing counsel, disqualification motions should be subjected to particularly strict judicial scrutiny.” Harker v. C.I.R., 82 F.3d 806, 808 (8th Cir.1996). Rule 1.9(a) of the Minnesota Rules of Professional Conduct states: A lawyer who has formerly represented a client in a matter shall not thereafter: (a) represent another person in the same or a substantially related matter in which that person’s interests are' materially ad-. verse to the interests of the former client unless the former client consents after consultation. Minn.R.Prof.C. 1.9(a) (1996). The Minnesota Supreme Court has established a three-part test in applying the Rules of Professional Conduct in a disqualification case: (a) Considering the facts and issues involved, is there a substantial, relevant relationship' or overlap bétween the subject matters of the two representations. (b) If so, then certain presumptions apply; first it is presumed, irrebuttablyt,] that the attorney received confidences from the former client and he or she will not be heard to claim otherwise. Second, it is also presumed, but subject to rebuttal, that these confidences were conveyed to" }, { "docid": "10522403", "title": "", "text": "a state rule of professional responsibility, however, and the task is to ascertain whether counsel has a conflict of interest, the criteria are not the same and a different conclusion may be required. For the matter at bar, the interests, goals, and strategic mindset that must be attributed to the reorganized Debtor on the one hand, and the Chapter 7 estate on the other, are distinct enough that the two must be deemed to be different clients, for the limited purposes of applying Minn.R.Prof. Cond. 1.9. As with the inquiry under § 327(e), the disqualifying circumstance is not raised by the Plaintiffs pleadings, but by his opponents’ theory of defense, and its existence is a,contested issue of fact at this early stage. Again, the courts must be aware of ulterior motives for disqualification motions, and .must be guided by an “awareness of the delicate balance which must be maintained between the right of an individual to retain counsel of his free choice” and the need for upholding ethical standards ... Buysse v. Baumann-Furrie & Co., 448 N.W.2d 865, 868 (Minn.1989) (quoting Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1576 (Fed.Cir.1984)). However, the possibility that the Defendants might prevail on the fact issue common to the merits and this motion must be sufficient to disqualify F&W. If Wallrich did, in fact, counsel Crowley to assent to TransAmerica’s proffer and Petrulo to acknowledge its effectuation, his law firm is now attacking an act that his former client took on his advice. That is just not tenable under Rule 1.9. This, then, is a third basis for disqualifying F&W. Cf. In re Statewide Pools, Inc., 79 B.R. 312, 314 (Bankr.S.D.Ohio 1987) (suggesting that counsel’s pre-petition role in drafting documents challenged by estate’s litigation may create disqualifying interest in defending them and preserving integrity of transfers effectuated by them). 2. Minn.R.Prof.Cond. 3.7 The Defendants’ final theory also arises under Minnesota law, which generally prohibits an attorney from undertaking an engagement where he or she is likely to be a material fact witness at trial. Minn.R.Prof. Cond. 3.7(a) states: A lawyer" }, { "docid": "10522402", "title": "", "text": "estate arose at a later date, and after a crucial divide: the cessation of the Debtor’s business. The Chapter 7 estate has very little to gain from a posture friendly to a secured creditor situated like TransAmerica; to the extent that the Plaintiff generated sufficient evidence after a reasonable investigation into the facts and law, he had every right to sue to recover damages from the parties that he thought had caused the Debt- or’s failure. If his conclusion were that TransAmerica and its allies were responsible — rather than Gunberg, Rieser, and theirs — the estate’s best interests would lie in challenging the validity of TransAmerica’s proposed effectuation, and denying that the Debtor had consented to it. For many substantive purposes peculiar to bankruptcy law, the debtor in possession, the reorganized debtor, and the Chapter 7 estate in two successive cases involving the same business entity may be deemed to have identical interests, and to be mutually bound by the actions of any of them. When the frame of reference is shifted over to a state rule of professional responsibility, however, and the task is to ascertain whether counsel has a conflict of interest, the criteria are not the same and a different conclusion may be required. For the matter at bar, the interests, goals, and strategic mindset that must be attributed to the reorganized Debtor on the one hand, and the Chapter 7 estate on the other, are distinct enough that the two must be deemed to be different clients, for the limited purposes of applying Minn.R.Prof. Cond. 1.9. As with the inquiry under § 327(e), the disqualifying circumstance is not raised by the Plaintiffs pleadings, but by his opponents’ theory of defense, and its existence is a,contested issue of fact at this early stage. Again, the courts must be aware of ulterior motives for disqualification motions, and .must be guided by an “awareness of the delicate balance which must be maintained between the right of an individual to retain counsel of his free choice” and the need for upholding ethical standards ... Buysse v. Baumann-Furrie & Co.," }, { "docid": "14168692", "title": "", "text": "held that only the former client could object to the seemingly adverse representation. “To allow an unauthorized surrogate to champion the rights of the former client would allow that surrogate to use the conflict rules for his own purposes where a genuine conflict might not really exist. It would place in the hands of the unauthorized surrogate powerful presumptions which are inappropriate in his hands.... We are ’ reluctant to extend [this power] where the party receiving such an advantage has no right of his own which is invaded.” Id. at 90. The court, however, suggested a possible exception where the ethical violation was “manifest and glaring” or “open and obvious and confronted the court with a plain duty to act.” Id. at 89. Thus it is unclear if the holding was a prudential one, or a constitutional one. Cf. In re Jaeger, 213 B.R. 578 (Bankr.C.D.Cal. . 1997); Dawson v. City of Bartlesville, 901 F.Supp. 314 (N.D.Okla.1995); Gilbert v. Knoxville International Energy Exposition, 547 F.Supp. 53 (1982) (all treating standing as critical threshold inquiry but leaving room to allow third party disqualification motions under certain circumstances). The Third Circuit relied on Yam Processing in “[ajssuming without deciding that- a motion to disqualify must be brought by a former client.” In re Corn Derivatives Antitrust Litig., 748 F.2d 157, 161 (3d Cir.1984). In In re Corn Derivatives, however, the court found that the former client had successfully joined another party’s motion to disqualify, so that the motion in question had been properly considered by the trial court. Later cases, such as O’Connor v. Jones, 946 F.2d 1395 (8th Cir.1991), and Griffen by Freeland v. East Prairie, Missouri Reorg. Sch. Dist. No. 2, 945 F.Supp. 1251 (E.D.Mo.1996), make the constitutional nature of the standing analysis more explicit. O’Connor v. Jones, for example, held that a prison inmate lacked constitutional standing to move to disqualify the state’s retained counsel on the ground that Missouri’s system of employing private law firms as “special assistant attorneys general” to defend prisoner cases violated the Sherman Act and constricted the supply of attorneys available to represent" }, { "docid": "12370203", "title": "", "text": "John Walshe in Support of PL’s Mot. to Disqualify, ¶ 1. According to plaintiff, since “108 [TV defendants] did not choose defense counsel and had no input in that choice,” there exists a “clear, unavoidable and insoluble conflict between the interests of the Paramount defendants ... and the rights of the TV defendants.” Id.; PL’s Memo. Supp. Mot. to Disqualify Defendants’ Counsel at 1. Courts have long recognized the need to protect the integrity of the attorney-client relationship in circumstances where a perceived conflict of interest arises. See, Bonin v. California, 494 U.S. 1039, 1040, 110 S.Ct. 1506, 108 L.Ed.2d 641 (1990) (Marshall, J., dissenting) (“[i]t is well established that the right to effective assistance of counsel carries with it a correlative right to representation that is free from conflicts of interest”); Board of Ed. of City of New York v. Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979) (trial judges have the power to disqualify counsel where necessary to preserve the integrity of adversary actions before them). A conflict of interest between clients can potentially compromise a lawyer’s duty to serve each client with undivided loyalty, as well as to deter the attorney from exercising independent, professional judgment on behalf of each client. Cinema 5, Ltd. v. Cinerama, Inc., 528 F.2d 1384, 1386 (2d Cir.1976). Contrasted against the court’s duty to protect the integrity of the trial proceeding, however, is its desire to respect the client’s interest in selecting and retaining counsel. Generally, courts have expressed reluctance in granting disqualification motions because of their concerns regarding: (1) the “immediate adverse effect disqualification has on the client separated from his lawyer;” (2) “the desire to preserve, to the greatest extent possible, ... the individual’s right to be represented by counsel of his or her choice;” and (3) “the awareness that disqualification motions are being made, with increasing frequency, with purely strategic purposes in mind.” Vegetable Kingdom, Inc. v. Katzen, 653 F.Supp. 917, 921 (N.D.N.Y.1987) (citing Nyquist, 590 F.2d 1241, 1246 (2d Cir.1979); Hull v. Celanese Corp., 513 F.2d 568, 569 (2d Cir.1975)). Giving full consideration to these competing interests, motions to" }, { "docid": "20601565", "title": "", "text": "authority for the proposition that in a disqualification situation, any doubt is to be resolved in favor of disqualification.” Id. (quotation marks and citation omitted). But the plaintiffs have failed to come forward with factual assertions and evidence sufficient to form the basis of a disqualification ruling, and the Court must therefore deny the defendants’ Rule 1.9 challenge. See, e.g., In re Penning, 930 A.2d 144, 155 (D.C.2007) (“Like any exercise of discretion, ... a court’s ruling either way [on a motion to disqualify counsel] must rest on ‘valid reasons’ and a ‘specific factual predicate.’ ”). However, the Court denies the motion without prejudice. It is not inconceivable that discovery will provide the defendants with evidence that would establish the existence of the prior representation, as well as whether it is substantially related to the current litigation, such that Williams & Connolly’s continued representation of the plaintiffs in this matter would constitute a violation of Rule 1.9. The plaintiffs are thus advised that the Court might, upon motion of the defendants, later disqualify Williams & Connolly. The plaintiffs should therefore bear in mind that such proceedings will only delay further the expeditious resolution of this case. 3. Whether Plaintiffs’ Counsel’s Representation Violates Rule 3.7 Finally, the defendants argue that Williams & Connolly and its attorneys may not “act[ ] in the dual role of witness and advocate, even if [their] testimony would be on behalf of the client.” Defs.’ Mem. at 16. Rule 3.7 states: (a) A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) The testimony relates to an uncontested issue; (2) The testimony relates to the nature and value of legal services rendered in the case; or (3) Disqualification of the lawyer would work substantial hardship on the client. (b) A lawyer may not act as advocate in a trial in which another lawyer in the lawyer’s firm is likely to be called as a witness if the other lawyer would be precluded from acting as advocate in the trial by Rule 1.7" }, { "docid": "10522404", "title": "", "text": "448 N.W.2d 865, 868 (Minn.1989) (quoting Panduit Corp. v. All States Plastic Mfg. Co., 744 F.2d 1564, 1576 (Fed.Cir.1984)). However, the possibility that the Defendants might prevail on the fact issue common to the merits and this motion must be sufficient to disqualify F&W. If Wallrich did, in fact, counsel Crowley to assent to TransAmerica’s proffer and Petrulo to acknowledge its effectuation, his law firm is now attacking an act that his former client took on his advice. That is just not tenable under Rule 1.9. This, then, is a third basis for disqualifying F&W. Cf. In re Statewide Pools, Inc., 79 B.R. 312, 314 (Bankr.S.D.Ohio 1987) (suggesting that counsel’s pre-petition role in drafting documents challenged by estate’s litigation may create disqualifying interest in defending them and preserving integrity of transfers effectuated by them). 2. Minn.R.Prof.Cond. 3.7 The Defendants’ final theory also arises under Minnesota law, which generally prohibits an attorney from undertaking an engagement where he or she is likely to be a material fact witness at trial. Minn.R.Prof. Cond. 3.7(a) states: A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. It is crystal-clear that Wallrich is a necessary witness on the issues of breach of the Debtor’s plan and causation of its damages, because of the relevance of the alleged events just described. The issue as to which he would testify is squarely in contest — indeed, the point was joined by his response, after the Defendants raised it through Crowley’s declaration. It has nothing to do with the nature or value of the services he rendered to the Debtor pre- or post-reorganization. Finally, there is just no record to support the argument that disqualifying F&W would work a substantial hardship on the Chapter 7 estate. F&W defends its utility to the estate on the ground that" }, { "docid": "10522405", "title": "", "text": "shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where: (1) the testimony relates to an uncontested issue; (2) the testimony relates to the nature and value of legal services rendered in the case; or (3) disqualification of the lawyer would work substantial hardship on the client. It is crystal-clear that Wallrich is a necessary witness on the issues of breach of the Debtor’s plan and causation of its damages, because of the relevance of the alleged events just described. The issue as to which he would testify is squarely in contest — indeed, the point was joined by his response, after the Defendants raised it through Crowley’s declaration. It has nothing to do with the nature or value of the services he rendered to the Debtor pre- or post-reorganization. Finally, there is just no record to support the argument that disqualifying F&W would work a substantial hardship on the Chapter 7 estate. F&W defends its utility to the estate on the ground that both Fafinski and Wall-rich have an intimate and manifold knowledge of the relevant facts. It also complains that the estate may have to forgo the prosecution of this matter were it disqualified; it cites the alleged complexity of the facts, the estate’s lack of means to fund the litigation through successor counsel, and the asserted prospect that no other law firm would undertake the financial risk of the engagement. The record, however, does not bear out any of these points. As the length of this order suggests, the facts may not be simple — but neither are they incapable of mastery with some reasonable attention. There is no showing that the Plaintiff even tried to enlist other counsel before suing this out, and certainly no proof that another law firm could not or would not take over the litigation now. One cannot conclude that disqualifying F&W would impose substantial hardship on the estate. The inherent conflict of credibility between Wallrich’s status as advocate and his status as witness, then, is a fourth reason to disqualify" }, { "docid": "20601549", "title": "", "text": "does not square with the high burden the defendants must satisfy to disqualify the plaintiffs’ counsel of choice. While discovery and further development of the facts in this case might ultimately support a finding of a Rule 1.7 violation, the defendants may not rely on that Rule as a basis for disqualifying Williams & Connolly as plaintiffs’ counsel in this case at this time. The Court must therefore deny the defendants’ Rule 1.7 challenge without prejudice. If evidence later comes to light that would counsel in favor of disqualification, the defendants may re-file their motion. 2. Whether Plaintiffs’ Counsel’s Representation Violates Rule 1.9 The defendants argue next that Williams & Connolly formerly represented Elwood concerning matters substantially related to this lawsuit, and thus Rule 1.9 prohibits the law firm from providing representation to the plaintiffs in this case. Defs.’ Mem. at 13. Rule 1.9 states: A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent. D.C. R. Profl Conduct 1.9. In order to establish a violation of Rule 1.9, the party seeking disqualification must satisfy three prerequisites: (1) “the attorney accused of the violation is a ‘former attorney’ with respect to a party presently before the court,” (2) “the subject matter of the former representation is the same as, or substantially related to, the present matter on which the alleged violation of Rule 1.9 is based,” and (3) “the interests of the former client are adverse to the interests of the party represented by the attorney who is accused of violating Rule 1.9.” GEO Specialty Chems., Inc. v. Husisian, 951 F.Supp.2d 32, 41, 2013 WL 3216041, at *8 (D.D.C.2013) (citation omitted). The comments to Rule 1.9 further elaborate: Matters are “substantially related” for purposes of this rule if they involved the same transaction or legal dispute or if there otherwise is a substantial risk that confidential factual information as would normally have been" } ]

[ { "docid": "23565233", "title": "", "text": "OPINION OF THE COURT JAMES HUNTER, III, Circuit Judge: This is a petition brought by the American Iron and Steel Institute and several individual steel companies to review regulations promulgated by the Administrator of the Environmental Protection Agency on June 28, 1974. In these regulations, entitled “Effluent Guidelines and Standards, Iron and Steel Manufacturing Point Source Category,” the Administrator established nationwide single number effluent limitations for point sources in the iron and steel industry engaged in “primary” (or basic manufacturing) operations. Contending that the Administrator’s regulations do not conform to the requirements of the Federal Water Pollution Control Act Amendments of 1972 (hereinafter, the “Act”), the petitioners seek judicial review of the Administrator’s actions under section 509(b)(1) of the Act. Two other steel companies — Youngstown Sheet and Tube Company, and CF&I Steel Corporation— filed similar petitions in the Sixth and Tenth Circuits, respectively. By order of each Circuit, the cases were transferred, to this Court, and they have been consolidated with the petitions filed here. In addition, the Natural Resources Defense Council, Inc., has filed a brief as Amicus Curiae. I Petitioners’ first, and most basic, challenge is to the Administrator’s very power to promulgate nationwide single number effluent limitations for existing point sources. Petitioners contend that the limitations which are to be binding on them can only be established by the permit-granting authorities (principally, the States), which are to follow guidelines promulgated by the Administrator. The Administrator contends that he is not merely empowered to promulgate guidelines, but may establish limitations which are binding throughout the country and which must be incorporated into any permit issued to any individual point source. The answer to this dispute, which goes to the very heart of the administration of the Act, depends upon our resolution of the interrelationship of three key sections of the Act — 301, 304 and 402. Petitioners rely heavily on the fact that there is no section in the Act which explicitly authorizes the Administrator to establish single number effluent limi tations for existing point sources. They contend that the lack of such explicit authorization cannot have" } ]

[ { "docid": "23199558", "title": "", "text": "Institute v. EPA, 526 F.2d 1027, No. 74-1640 (Nov. 7, 1975), has reached an opposite result, as have several district courts. E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1253 (W.D.Va.1974), appeal pending, No. 74--2237 (4th Cir.); American Paper Inst. v. Train, 381 F.Supp. 553, 554 (D.D.C.1973), appeal pending, No. 74-1544 (D.C.Cir.); American Petroleum Inst. v. Train, No. 74-F-8 at 6 (D.Col., April 8, 1975). In EPA’s view, the Act calls for the setting of across-the-board effluent limitations pursuant to § 301(b), based on guidelines prescribed pursuant to § 304(b). The permit-issuing process, according to EPA, is a mechanism for verifying compliance by each plant and individualizing the effluent limitations to the extent required by the peculiarities of individual point sources. In choosing between these conflicting views, we are guided by the teaching of the Supreme Court in Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), which arose under the Clean Air Amendments of 1970, 42 U.S.C. § 1857a et seq. The courts of appeals had given varying interpretations of that Act, all of which differed from the one adopted by the agency. Noting that “[t]he disparity among the courts of appeals rather strongly indicates that the question does not admit of an easy answer,” the Court said that while the agency’s construction was not “the only one it permissibly could have adopted, ... it was at the very least sufficiently reasonable that it should have been accepted by the reviewing courts,” 421 U.S. at 75, 95 S.Ct. at 1480, and, further, “sufficiently reasonable to preclude the Court of Appeals [in that case] from substituting its judgment for that of the Agency.” Id. at 87, 95 S.Ct. at 1485. Our inquiry then is not whether the agency’s interpretation of § 301 is the only permissible one, but rather whether it is sufficiently reasonable to preclude us from substituting our judgment for that of the agency. . See also, McLaren v. Fleischer, 256 U.S. 477, 480-481, 41 S.Ct. 577, 65 L.Ed. 1052 (1921). The heart of the controversy" }, { "docid": "5632579", "title": "", "text": "the inclusion in section 509(b)(1)(E), 33 U.S.C. § 1369(b)(1)(E), see note 4 supra, of “approving or promulgating any effluent limitation or other limitation under section 301” among EPA actions that may be reviewed in the courts of appeals would be meaningless unless water quality standards are considered “limitations,” which .arise “under section 301” because they are designed to meet the goals established in that section. This argument is fallacious. We have rejected the Eighth Circuit’s view of section 301, Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 624-629 (2d Cir. 1976), as have other courts that have faced the issue. E. I. du Pont de Nemours & Co. v. Train, 541 F.2d 1018, 8 ERC 1718, 1720-22 (4th Cir. March 10,1976), cert. granted, U.S. -, 96 S.Ct. 3165, 48 L.Ed.2d -, 44 U.S.L.W. 3738 (1976) (du Pont II)-, American Meat Institute v. EPA, 526 F.2d 442 (7th Cir. 1975); American Iron & Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975). If, as we have held, section 301 authorizes EPA to issue effluent limitations, the reference in section 509(b)(1)(E) is readily understandable. Although Bethlehem is correct that the Act does contemplate effluent limitations promulgated by the states, this does not mean that water quality standards, because they are initially issued by the states, must therefore be regarded as effluent limitations. Moreover, even on the Eighth Circuit’s view, the reference to section 301 is understandable without reference to section 303. CPC International Inc. v. Train, supra, 515 F.2d at 1043. Second, Bethlehem argues that the use of the word “approving” in section 509(b)(1)(E) must refer to some action beyond the sections specifically enumerated, because EPA does not “approve” any limitations under any of those sections. The reference must therefore be to water quality standards, which are issued by the states and “approved” by EPA under section 303. .EPA replies that there are indeed actions that may be taken under sections 301, 302 and 306 that can be called “approval.” But we do not think it necessary to decide whether the actions specified by EPA were what Congress had" }, { "docid": "23199614", "title": "", "text": "this provision is not subject to judicial review in any later enforcement proceeding. § 509(b)(2). . CPC International Inc. and the American Petroleum Institute filed briefs attacking the Administrator’s authority; the National Resources Defense Council filed briefs in support of the Administrator. References in the text to “amici” refer only to CPC and American Petroleum Institute. . EPA argues that we would still have jurisdiction to review the regulations because of the close interrelationship between § 301 limitations and § 304(b) guidelines, and because bifurcated review of the limitations and guidelines would frustrate an important purpose behind the judicial review provisions of the Act — expeditious and consistent application of effluent limitations. See Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); E. I. DuPont de Nemours v. Train, 383 F.Supp. 1244, 1253-1254 (W.D.Va.1975), appeal pending, No. 74-2237 (4th Cir.). Cf. National Resources Defense Council, Inc. v. Train, 519 F.2d 287, 290 (D.C.Cir. 1975). We need not reach this point in view of our conclusion as to § 301. In American Iron and Steel Institute v. EPA, 526 F.2d 1027, No. 74-1640 (Nov. 7, 1975), cited infra, p. 449, et seq., the court (p. 1045, et seq.) reviewed effluent regulations issued under both § 301(b) and § 304(b) and found that they did not meet the requirements of § 304(b). It is not contended in the case at bar that the requirements of § 304(b) were not complied with. . Both EPA and amici apparently assume that rejection of EPA’s interpretation of § 301 would require a radical change in the way the Act is now administered. This is far from clear. Admittedly, if amici’s view of § 301 were accepted, effluent limitations applicable to a particular source could not be set until the permit issuance proceeding, but it does not necessarily follow that, before issuing the permit, EPA would be forced to gather and analyze data on the individual characteristics of each plant. Instead, EPA could perhaps include minimum effluent limitations in the guidelines and place the burden on the applicant of" }, { "docid": "23199557", "title": "", "text": "consider whether the Administrator has authority to promulgate existing-source regulations under § 301. While ordinarily we would not allow amici to inject new issues into a case, our continuing duty to satisfy ourselves of our jurisdiction requires us to consider their argument. Amici assert that individual effluent limitations must be established for each existing point source through the permit-issuing process of § 402, using regulations promulgated under § 304(b) as guidelines. Thus, effluent limitations would be set on a case-by-case basis, rather than being prescribed by regulations covering entire subcategories. Under this view, the Administrator lacked the authority to establish across-the-board effluent limitations by regulation, so the regulations were not properly issued as § 301 limitations and are therefore not reviewable here. In essence, this was the position adopted by the Eighth Circuit in CPC International Inc. v. Train, 515 F.2d 1032, 1037 (8th Cir. 1975). In that case, the court held that it lacked jurisdiction to review similar regulations promulgated for a different point source category. The Third Circuit, in American Iron and Steel Institute v. EPA, 526 F.2d 1027, No. 74-1640 (Nov. 7, 1975), has reached an opposite result, as have several district courts. E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1253 (W.D.Va.1974), appeal pending, No. 74--2237 (4th Cir.); American Paper Inst. v. Train, 381 F.Supp. 553, 554 (D.D.C.1973), appeal pending, No. 74-1544 (D.C.Cir.); American Petroleum Inst. v. Train, No. 74-F-8 at 6 (D.Col., April 8, 1975). In EPA’s view, the Act calls for the setting of across-the-board effluent limitations pursuant to § 301(b), based on guidelines prescribed pursuant to § 304(b). The permit-issuing process, according to EPA, is a mechanism for verifying compliance by each plant and individualizing the effluent limitations to the extent required by the peculiarities of individual point sources. In choosing between these conflicting views, we are guided by the teaching of the Supreme Court in Train v. Natural Resources Defense Council, Inc., 421 U.S. 60, 95 S.Ct. 1470, 43 L.Ed.2d 731 (1975), which arose under the Clean Air Amendments of 1970, 42 U.S.C. § 1857a et seq. The" }, { "docid": "22041880", "title": "", "text": "306 standards of performance for new plants, which are directly reviewable in the Court of Appeals. The Courts of Appeals have resolved these issues in various ways. Only the Eighth Circuit, the first to consider the issues, has accepted the industry position. In CPC I, supra, it held that EPA lacked the authority to issue effluent-limitation regulations and that jurisdiction to review the regulations as § 304 guidelines was in the District Court. The Fourth Circuit, in Du Pont II, supra, and the Tenth Circuit, in American Petroleum Institute v. EPA, 540 F. 2d 1023 (1976), held that EPA has the authority to issue effluent-limitation regulations, but that these regulations are only presumptively applicable to individual sources. The majority position, adopted by the Third Circuit, American Iron & Steel Institute v. EPA, 526 F. 2d 1027 (1975); the Seventh Circuit, American Meat Institute v. EPA, 526 F. 2d 442 (1975); the District of Columbia Circuit, American Frozen Food Institute v. Train, 176 U. S. App. D. C. 105, 539 F. 2d 107 (1976); and the Second Circuit, Hooker Chemicals & Plastics Corp. v. Train, 537 F. 2d 620 (1976), is that EPA has the authority to issue regulations setting forth effluent limitations which individual plants may not exceed. Even these courts are not in complete agreement about the form the regulations should take. The commentators have also divided on these problems. See Parenteau & Tauman, The Effluent Limitations Controversy, 6 Ecology L. Q. 1 (1976); Note, Judicial Maelstrom in Federal Waters, 45 Ford. L. Rev. 625 (1976); Comment, The Application of Effluent Limitations and Effluent Guidelines to Industrial Polluters, 13 Houst. L. Rev. 348 (1976); Note, Effective National Regulation of Point Sources Under the 1972 Federal Water Pollution Control Act, 10 Ga. L. Rev. 983 (1976). The difference in opinion among the Circuits may be less significant than might appear. The Eighth Circuit has concluded: “Under our ruling, the limitations written into individual permits for existing point sources should be substantially similar to those written into permits if the EPA’s theory of the Act were to be adopted. “The only" }, { "docid": "23390477", "title": "", "text": "that Congress intended to enforce uniformity of conditions for existing plants, not by authorizing the promulgation of regulations under § 301, but by granting the EPA power to issue permits and to veto state-issued permits which do not comply with guidelines promulgated under § 304(b).” Next came the Third Circuit with American Iron and Steel Institute v. Environmental Protection Agency, 526 F.2d 1027 (3rd Cir. 1975) (November 7, 1975). There, a group of steel companies sought to review regulations entitled “Effluent Guidelines and Standards, Iron and Steel Manufacturing Point Source Category” promulgated by the Administrator as effluent limitations. The Court acknowledged that the “first, and most basic, challenge is to the Administrator’s very power to promulgate nationwide single number effluent limitations for existing point sources” and found that the answer “which goes to the very heart of the administration of the Act, depends upon our resolution of the interrelationship of three key sections of the Act— 301, 304 and 402.” The petitioners there had contended (as do Petitioners here) that limitations could only be established by the permit-granting authorities which would apply § 304 guidelines in issuing permits on a plant-by-plant basis under § 402. Although the Court recognized that § 301(b) “does not explicitly authorize the Administrator (or anyone else) to promulgate regulations establishing such limitations”, it concluded that in light of the statutory scheme and legislative history such power could be “inferred”. This inference was strengthened, in the Court’s opinion, by the “repeated reference to such limitations” as being “under” or “pursuant” to § 301. Accordingly, the Third Circuit disagreed with the Eighth’s conclusion in CPC Inter national and held that EPA did have the power to issue limitations under § 301. The Court concluded that “a joint reading of sections 304 and 301 lends support for the Administrator’s position” and accepted § 509 initial jurisdiction. A few days later (November 24,1975) the Seventh Circuit in American Meat Institute v. Environmental Protection Agency, 526 F.2d 442 (7th Cir., 1975), solved the problem of limitations or guidelines by flatly declaring at the outset “This is a review of effluent" }, { "docid": "23591878", "title": "", "text": "EPA may not promulgate regulations establishing effluent limitations for existing sources. All other circuits considering the problem have held to the contrary. See Second Circuit, Hooker Chemicals, at p. 628; Third Circuit, Steel Institute, 526 F.2d at 1040-1042; Fourth Circuit, du Pont II, at pp. 1026-1027; Seventh Circuit, Meat Institute, 526 F.2d at 449-452; and D.C. Circuit, Frozen Food Institute, at pp. 127-129. All of the above cases, except duPont II, considered the problem in connection with determination of jurisdiction of the court of appeals. Section 509(b), which provides for judicial review of agency action, does not include action taken under § 304, Except for CPC, the courts rejected the argument that § 301 does not authorize the promulgation of effluent limitations by regulation and, hence, § 509(b) does not permit review in the court of appeals. Our situation is the same as that presented in duPont II. Jurisdiction had been decided and, in the exercise of that jurisdiction, we must determine the authority of EPA to promulgate the regulations. The Administrator did not meet the one-year requirement for the publishing of regulations “providing guidelines for effluent limitations.” § 304(b). The enormity of the task precluded compliance. After the imposition of a court mandated timetable, NRDC, 510 F.2d at 710-714, he published “effluent limitations guidelines”, and in so doing said that the action was taken under both § 301 and § 304, along with other sections. API I, 526 F.2d at 1345. Nothing in the Act forbids the combination of § 301 effluent limitations with § 304 guidelines. At the moment our concern is with authority to promulgate. Section 501(a) authorizes the Administrator “to prescribe such regulations as are necessary to carry out his functions under this Act.” His functions are “to administer this Act.” § 101(d). The attainment of the congressional intent to protect and preserve water purity comes through control of pollutant discharge. Section 301(e) refers to the establishment of effluent limitations but does not say who does the establishing. Section 502(11) defines effluent limitations as “any restriction established by a State or the Administrator.” Subsections 402(a)(1) and" }, { "docid": "23390476", "title": "", "text": "304 “effluent limitation guidelines” which assertedly define in concrete terms the abstract norms of § 301 “effluent limitations”. These definitions are then incorporated into § 301 “effluent limitations” and the limitations are then incorporated into permits by permit-grantors. No express statutory authority supports this conclusion except that the effluent limitations of § 301 are to be “as defined by the Administrator pursuant to section 304(b).” On this fragile nexus of § 304 to § 301 to § 509, jurisdiction in the Court of Appeals is asserted to rest. Seeking guidelines of our own from the other Courts of Appeals which have had to cope with this problem of jurisdiction, a brief review of recent decisions from the Third, Fourth, Seventh and Eighth Circuits is a useful introduction to our discussion. In CPC International, Inc. v. Train, 515 F.2d 1032 (8th Cir. 1975), the Eighth Circuit concluded that “the guidelines [§ 304] for existing plants cannot be directly reviewed” and accordingly dismissed the petitions for review. The Court buttressed its opinion by “legislative history [which] confirms that Congress intended to enforce uniformity of conditions for existing plants, not by authorizing the promulgation of regulations under § 301, but by granting the EPA power to issue permits and to veto state-issued permits which do not comply with guidelines promulgated under § 304(b).” Next came the Third Circuit with American Iron and Steel Institute v. Environmental Protection Agency, 526 F.2d 1027 (3rd Cir. 1975) (November 7, 1975). There, a group of steel companies sought to review regulations entitled “Effluent Guidelines and Standards, Iron and Steel Manufacturing Point Source Category” promulgated by the Administrator as effluent limitations. The Court acknowledged that the “first, and most basic, challenge is to the Administrator’s very power to promulgate nationwide single number effluent limitations for existing point sources” and found that the answer “which goes to the very heart of the administration of the Act, depends upon our resolution of the interrelationship of three key sections of the Act— 301, 304 and 402.” The petitioners there had contended (as do Petitioners here) that limitations could only be established" }, { "docid": "5632578", "title": "", "text": "1311, 1314, 1316. Thus, although water quality standards and effluent limitations are related, see, e. g., sections 301(b)(1)(C) and 302, 33 U.S.C. §§ 1311(b)(1)(C), 1312, permitting effluent limitations to be based on water quality standards, the two are entirely different concepts and the difference is at the heart of the 1972 Amendments. II Despite this history, Bethlehem argues that the structure of the Act demonstrates that in this instance “effluent limitation or other limitation under section 301, 302, or 306” includes water quality standards under section 303, and therefore jurisdiction over this action rests in this court. First, it contends that from sections 301(b)(1)(C) and 502(11) of the FWPCA, 33 U.S.C. §§ 1311(b)(1)(C), 1362(11), it is clear that “effluent limitations” include regulations promulgated by the states as well as by EPA. Indeed, citing the Eighth Circuit’s decision in CPC International Inc. v. Train, supra, Bethlehem argues that only the states have authority to issue effluent limitations, and that section 301 does not authorize EPA to issue such limitations. If this view is accepted, Bethlehem argues, the inclusion in section 509(b)(1)(E), 33 U.S.C. § 1369(b)(1)(E), see note 4 supra, of “approving or promulgating any effluent limitation or other limitation under section 301” among EPA actions that may be reviewed in the courts of appeals would be meaningless unless water quality standards are considered “limitations,” which .arise “under section 301” because they are designed to meet the goals established in that section. This argument is fallacious. We have rejected the Eighth Circuit’s view of section 301, Hooker Chemicals & Plastics Corp. v. Train, 537 F.2d 620, 624-629 (2d Cir. 1976), as have other courts that have faced the issue. E. I. du Pont de Nemours & Co. v. Train, 541 F.2d 1018, 8 ERC 1718, 1720-22 (4th Cir. March 10,1976), cert. granted, U.S. -, 96 S.Ct. 3165, 48 L.Ed.2d -, 44 U.S.L.W. 3738 (1976) (du Pont II)-, American Meat Institute v. EPA, 526 F.2d 442 (7th Cir. 1975); American Iron & Steel Institute v. EPA, 526 F.2d 1027 (3d Cir. 1975). If, as we have held, section 301 authorizes EPA to issue" }, { "docid": "23199613", "title": "", "text": "responsibilities are delegated, he of course carries out his duties through the agency, which is the first named respondent here and on whose behalf the respondent’s brief has been filed. We will hereafter refer to EPA and the Administrator interchangeably. . According to the Final Development Document, “[t]he major criterion for the establishment of the categories” was the oxygen demand of the plant waste water; “[o]ther criteria were the primary products produced and the secondary (by-product) processes employed.” FDD 1. The sub-categories are-defined in the regulations, however, only in terms of function and extent of by-product processing. . The regulations also cover new sources. For each subcategory there is a section prescribing new source standards of performance pursuant to § 306, 40 C.F.R. §§ 432.15, 432.25, 432.35, 432.45, and a section prescribing pretreatment standards pursuant to § 307, 40 C.F.R. §§ 432.16, 432.26, 432.36, 432.46. Neither the new source nor the pretreatment regulations are challenged in this proceeding. . The application must be filed within 90 days. § 509(b)(1). Action which could be reviewed under this provision is not subject to judicial review in any later enforcement proceeding. § 509(b)(2). . CPC International Inc. and the American Petroleum Institute filed briefs attacking the Administrator’s authority; the National Resources Defense Council filed briefs in support of the Administrator. References in the text to “amici” refer only to CPC and American Petroleum Institute. . EPA argues that we would still have jurisdiction to review the regulations because of the close interrelationship between § 301 limitations and § 304(b) guidelines, and because bifurcated review of the limitations and guidelines would frustrate an important purpose behind the judicial review provisions of the Act — expeditious and consistent application of effluent limitations. See Foti v. Immigration and Naturalization Service, 375 U.S. 217, 84 S.Ct. 306, 11 L.Ed.2d 281 (1963); E. I. DuPont de Nemours v. Train, 383 F.Supp. 1244, 1253-1254 (W.D.Va.1975), appeal pending, No. 74-2237 (4th Cir.). Cf. National Resources Defense Council, Inc. v. Train, 519 F.2d 287, 290 (D.C.Cir. 1975). We need not reach this point in view of our conclusion as to §" }, { "docid": "424119", "title": "", "text": "no such denial. Our holding does not conflict with the decisions of this court in American Iron & Steel Institute v. EPA (AISI I), 526 F.2d 1027 (3d Cir. 1975) or American Iron & Steel Institute v. EPA (AISI II), 568 F.2d 284 (3d Cir. 1977). In AISI I, this court addressed, inter alia, two alleged inadequacies of regulations promulgated under the Federal Water Pollution Control Act. First, we reviewed a regulation promulgated pursuant to section 304 of the Act, which requires the EPA to establish certain guidelines. We remanded the matter to EPA for repromulgation, holding that a single number ceiling on permissible effluent discharges was not a guideline and thus that the promulgation was invalid. American Iron & Steel Inst. v. EPA, 526 F.2d at 1046. Second, we rejected on the merits petitioners’ argument that the Administrator had failed to use an adequate data base in promulgating limitations under section 306. Id. at 1057. The AISI I petitioners did not, however, allege that the Administrator failed to act at all, but rather that his promulgations were deficient. Id. at 1042-46, 1057. Thus, this court properly reviewed those contentions under our section 509 jurisdiction. In the instant case, however, the petitioners do not challenge the regulations which were issued, but seek to have us compel further promulgations with respect to post-mining discharges. Our conclusion that such a contention may only be raised in a section 505(a)(2) proceeding in district court, 33 U.S.C. § 1365(a)(2) (suits against Administrator for failure to perform nondiscretionary duty), therefore does not conflict with AISI I. Nor does it conflict with the subsequent American Iron & Steel Institute (AISI II) decision. As a part of its review of the regulations promulgated in that case, the court reviewed the Administrator’s decision to exempt certain of petitioners’ competitors from the section 301 limitations. Section 301(e) requires that all point sources be included within the limitations. 568 F.2d at 307; see 33 U.S.C. § 1311(e). Thus, this court could, within its section 509 jurisdiction, review the exemption of those competitors from the section 301 limitations. See 33 U.S.C." }, { "docid": "22041891", "title": "", "text": "guidelines and requirements of this Act,” § 402 (d)(2), can only refer to § 304 (b) guidelines. CPC I, supra, at 1038-1039. Section 304 (h) provides for guidelines governing the procedure for issuance of permits; EPA can veto a permit if “the issuance of such permit” violated these guidelines.) We are also unconvinced by the argument that our view of the Act violates the congressional intent to leave the States a major role in controlling water pollution. See American Meat Institute, supra, at 452. Petitioners contend that the administrative construction should not receive deference because it was not contemporaneous with the passage of the Act. They base this argument primarily on the fact that EPA’s initial notices of its proposed rulemaking refer to § 304 (b), rather than § 301, as the source of authority. But this is merely evidence that the Administrator originally intended to issue guidelines prior to issuing effluent limitation regulations. American Frozen Food Institute v. Train, supra, at 128 n. 6, 539 F. 2d, at 130 n. 6. In fact, in a letter urging the President to sign the Act, the Administrator stated that “[t]he Conference bill fully incorporates as its central regulatory point the Administration’s proposal concerning effluent limitations in terms of industrial categories and groups ultimately applicable to individual dischargers through a permit system.” 118 Cong. Rec. 36777 (1972), Leg. Hist. 149 (emphasis added). Finally, the EPA interpretation would be entitled to some deference even if it was not contemporaneous, “having in mind the complexity and technical nature of the statutes and the subjects they regulate, the obscurity of the statutory language, and EPA’s unique experience and expertise in dealing with the problems created by these conditions.” American Meat Institute v. EPA, supra, at 450 n. 16. This litigation exemplifies the wisdom of allowing difficult issues to mature through full consideration by the courts of appeals. By eliminating the many subsidiary, but still troubling, arguments raised by industry, these courts have vastly simplified our task, as well as having underscored the reasonableness of the agency view. It should be noted that petitioners’ principal arguments" }, { "docid": "23390479", "title": "", "text": "limitations promulgated by the Administrator . . . ” The parties agreed that the Court had jurisdiction but amici attacked the Administrator’s authority under § 301 to issue limitations. As in CPC International and American Iron and Steel, it was argued that individual effluent limitations were only to be established by the permit-issuing process of § 402, using § 304(b) guidelines as the criteria. The Court rejected CPC International and held it had authority to review the regulations under § 509 The Court was influenced, as was the Third Circuit, by the many statutory references to § 301 and by EPA’s statement in preambles to both proposed and final regulations that they were promulgated “pursuant to § 301 and § 304(b)”. The Court believed that EPA’s position was more consistent with Congressional intent and concluded that EPA “had the authority to issue effluent limitations under § 301” and, by implication, that the regulations were both § 304 guidelines and the § 301 “limitations”. On December 30,1975, the Fourth Circuit decided E. I. DuPont de Nemours, Inc. v. Train, 528 F.2d 1136 (4th Cir. 1975), cert. granted, - U.S. -, 96 S.Ct. 1662, 48 L.Ed.2d 174, 44 U.S.L.W. 3592 (1976) (de Nemours I). The District Court had held that it lacked jurisdiction to hear a petition to review regulations purporting to establish effluent limitations. On an appeal limited to the jurisdictional issue, the Administrator claimed that he had “combined his rulemaking authority under this section [§ 301] with that specifically provided for under § 304(b)”. The petitioners took the position that the regulations could not have been issued under § 301 or a combination of § 301 and § 304(b), but only under § 304(b). They concluded that since the Act did not confer review jurisdiction of § 304 regulations on the Court of Appeals, the regulations could only be reviewed initially in the District Court. The Fourth Circuit affirmed the District Court’s rejection of petitioners’ arguments. It held that Courts of Appeals have exclusive jurisdiction to review the regulations. The court was influenced by the fact that in the same" }, { "docid": "22041879", "title": "", "text": "with EPA’s cross-petition, No. 75-1705, and ordered that they be argued in tandem with the companies’ petition in Du Pont I. 426 U. S. 947. Section 304 (b) calls for publication of guideline regulations within one year of the Act’s passage. EPA failed to meet this deadline and was ordered to issue the regulations on a judicially imposed timetable. Natural Resources Defense Council, Inc. v. Train, 166 U. S. App. D. C. 312, 510 F. 2d 692 (1975). Although the Act itself does not provide for review of guidelines, the Eighth Circuit has held that they are reviewable in the district court, apparently under the Administrative Procedure Act. CPC Int’l, Inc. v. Train, 515 F. 2d 1032, 1038 (1975) (CPC I). It has been suggested, however, that even if the EPA regulations are considered to be only § 304 guidelines, the Court of Appeals might still have ancillary jurisdiction to review them because of their close relationship with the § 301 effluent limitations, and because they were developed on the same record as the § 306 standards of performance for new plants, which are directly reviewable in the Court of Appeals. The Courts of Appeals have resolved these issues in various ways. Only the Eighth Circuit, the first to consider the issues, has accepted the industry position. In CPC I, supra, it held that EPA lacked the authority to issue effluent-limitation regulations and that jurisdiction to review the regulations as § 304 guidelines was in the District Court. The Fourth Circuit, in Du Pont II, supra, and the Tenth Circuit, in American Petroleum Institute v. EPA, 540 F. 2d 1023 (1976), held that EPA has the authority to issue effluent-limitation regulations, but that these regulations are only presumptively applicable to individual sources. The majority position, adopted by the Third Circuit, American Iron & Steel Institute v. EPA, 526 F. 2d 1027 (1975); the Seventh Circuit, American Meat Institute v. EPA, 526 F. 2d 442 (1975); the District of Columbia Circuit, American Frozen Food Institute v. Train, 176 U. S. App. D. C. 105, 539 F. 2d 107 (1976); and the" }, { "docid": "22041854", "title": "", "text": "view, the § 304 guidelines serve the function of guiding the permit issuer in setting the effluent limitations. The jurisdictional issue is subsidiary to the critical question whether EPA has the power to issue effluent limitations by regulation. Section 509 (b)(1), 86 Stat. 892, 33 U. S. C. 1369 (b)(1), provides that “[r]eview of the Administrator’s action . . . (E) in approving or promulgating any effluent limitation . . . under section 301” may be had in the courts of appeals. On the other hand, the Act does not provide for judicial review of § 304 guidelines. If EPA is correct that its regulations are “effluent limitation[s] under section 301,” the regulations are directly reviewable in the Court of Appeals. If industry is correct that the regulations can only be considered § 304 guidelines, suit to review the regulations could probably be brought only in the District Court, if anywhere. Thus, the issue of jurisdiction to review the regulations is intertwined with the issue of EPA’s power to issue the regulations. I We think § 301 itself is the key to the problem. The statutory language concerning the 1983 limitations, in particular, leaves no doubt that these limitations are to be set by regulation. Subsection (b)(2)(A) of § 301 states that by 1983 “effluent limitations for categories and classes of point sources” are to be achieved which will require “application of the best available technology economically achievable for such category or class.” (Emphasis added.) These effluent limitations are to require elimination of all discharges if “such elimination is technologically and economically achievable for a category or class of point sources.” (Emphasis added.) This is “language difficult to reconcile with the view that in dividual effluent limitations are to be set when each permit is issued.” American Meat Institute v. EPA, 526 F. 2d 442, 450 (CA7 1975). The statute thus focuses expressly on the characteristics of the “category or class” rather than the characteristics of individual point sources. Normally, such classwide determinations would be made by regulation, not in the course of issuing a permit to one member of" }, { "docid": "23199563", "title": "", "text": "We agree with the courts in American Iron and Steel Institute v. EPA, supra, 526 F.2d at 1038, and E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1251 (W.D.Va.1974), appeal pending, No. 74-2237 (4th Cir.), that under the interpretation of the Act urged by amici here subsections (2) and (6) of § 505(f) would be redundant, and disagree with the Eight Circuit (CPC International Inc. v. Train, supra, 515 F.2d at 1043) that the reference to § 301 in § 505(f)(2) is to § 301(f). In summary, the most natural reading of the language of the Act is that § 301 is a source of authority to promulgate effluent limitations, independent of the § 402 permit procedure. The legislative history also contains support for the EPA position. Senator Bentsen, a member of the Public Works Committee that reported out the original version of the Act, stated during the Senate debate: “In phase I, for point sources of pollutants, effluent limits shall be established not later than January 1, 1976 [now July 1, 1977], which comply with specifically defined levels of effluent control and treatment. As defined in section 301(b)(1) of the bill, and as elaborated in the regulations which we anticipate the Administrator shall issue pursuant to sections 301 and 304, these . . . goals shall be at least the ‘best practicable control technology currently available’ for [industrial] point sources . . . .” Quoted in Congressional Research Service, A Legislative History of Water Pollution Control Act Amendments of 1972, at 1283 (1973) (emphasis added) (hereinafter “Leg.Hist.”). The Senate Report stated specifically that, “pursuant to subsection 301(b)(1) (A) and section 304(b)” the Administrator is to interpret “best practicable” as a “basis for specifying clear and precise effluent limitations.” Leg.Hist. 1468. Also, during Senate consideration of the conference committee report, Senator Muskie, the principal author of the Act, explained: “[T]he conference agreement provides that each poluter within a category or class of industrial sources will be required to achieve nationally uniform effluent limitations based on ‘best practicable’ technology no later than July 1, 1977. This does" }, { "docid": "23390478", "title": "", "text": "by the permit-granting authorities which would apply § 304 guidelines in issuing permits on a plant-by-plant basis under § 402. Although the Court recognized that § 301(b) “does not explicitly authorize the Administrator (or anyone else) to promulgate regulations establishing such limitations”, it concluded that in light of the statutory scheme and legislative history such power could be “inferred”. This inference was strengthened, in the Court’s opinion, by the “repeated reference to such limitations” as being “under” or “pursuant” to § 301. Accordingly, the Third Circuit disagreed with the Eighth’s conclusion in CPC Inter national and held that EPA did have the power to issue limitations under § 301. The Court concluded that “a joint reading of sections 304 and 301 lends support for the Administrator’s position” and accepted § 509 initial jurisdiction. A few days later (November 24,1975) the Seventh Circuit in American Meat Institute v. Environmental Protection Agency, 526 F.2d 442 (7th Cir., 1975), solved the problem of limitations or guidelines by flatly declaring at the outset “This is a review of effluent limitations promulgated by the Administrator . . . ” The parties agreed that the Court had jurisdiction but amici attacked the Administrator’s authority under § 301 to issue limitations. As in CPC International and American Iron and Steel, it was argued that individual effluent limitations were only to be established by the permit-issuing process of § 402, using § 304(b) guidelines as the criteria. The Court rejected CPC International and held it had authority to review the regulations under § 509 The Court was influenced, as was the Third Circuit, by the many statutory references to § 301 and by EPA’s statement in preambles to both proposed and final regulations that they were promulgated “pursuant to § 301 and § 304(b)”. The Court believed that EPA’s position was more consistent with Congressional intent and concluded that EPA “had the authority to issue effluent limitations under § 301” and, by implication, that the regulations were both § 304 guidelines and the § 301 “limitations”. On December 30,1975, the Fourth Circuit decided E. I. DuPont de Nemours," }, { "docid": "23591869", "title": "", "text": "505. Section 304(a)(1) provides that within one year after enactment the Administrator must publish “criteria for water quality accurately reflecting the latest scientific knowledge” on enumerated subjects. Within the same period the Administrator shall publish regulations “providing guidelines for effluent limitations.” § 304(b). Subsection (b)(1)(A) applies to the 1977 step and subsection (b)(2)(A) to the 1983 step. Each subsection mandates consideration of specified factors. The Administrator did not act within the one year requirements of § 304. Compliance was not within the realm of reality. An estimated 30,000 applications for permits were filed. EPA characterizes the Act as “incredibly complex and demanding.” See duPont II infra. A private suit was brought to compel compliance. Natural Resources Defense Council, Inc. v. Train (NRDC), 166 U.S.App.D.C. 312, 510 F.2d 692. The result was a court imposed timetable. Ibid, at 710-714. The regulations here under attack were promulgated in May and September, 1974, and some were amended in May, 1975. The EPA regulations relating to industrial discharge of pollutants have produced much litigation. Decisions to date of various courts of appeals are, in chronological order: 1— CPC International, Inc. v. Train, 8 Cir., 515 F.2d 1032 (Corn Wet Milling); 2— American Iron and Steel Institute v. Environmental Protection Agency, 3 Cir., 526 F.2d 1027 (Iron and Steel Manufacturing); 3— American Meat Institute v. Environmental Protection Agency, 7 Cir., 526 F.2d 442 (Meat Products); 4— American ■ Petroleum Institute v. Train (API I), 10 Cir., 526 F.2d 1343 (Jurisdiction); 5— E. I. duPont de Nemours & Company v. Train (duPont I), 4 Cir., 528 F.2d 1136. Filed December 30, 1975, cert. granted 425 U.S. 933, 96 S.Ct. 1662, 48 L.Ed.2d 174 (Jurisdiction); 6— E. I. duPont de Nemours & Company v. Train (duPont II), 4 Cir., 541 F.2d 1018. Filed March 10, 1976, cert. granted-Ú.S.-, 96 S.Ct. 3165, 49 L.Ed.2d - (Inorganic Chemicals); 7— Tanners’ Council of America, Inc. v. Train, 4 Cir., 540 F.2d 1188. Filed March 10, 1976 (Leather Tanning); 8— FMC Corporation v. Train, 4 Cir., 539 F.2d 973. Filed March 10, 1976 (Plastic and Synthetic Materials); 9— Hooker Chemicals &" }, { "docid": "5697908", "title": "", "text": "International Inc. v. Train, 8 Cir., 515 F.2d 1032, was an original proceeding in the court of appeals attacking several regulations under Subchapter N, 40 C.F.R. The court held that it did not have jurisdiction in original proceedings to review limitations on existing sources. In so doing it commented that the parties agreed that “if the existing source regulations were published exclusively pursuant to § 304(b), we do not have jurisdiction to examine them in an original proceeding.” Ibid, at 1037. With all deference we point out that the regulations were not published exclusively un der § 304(b) but were published pursuant to § 301, § 304, and other specified sections. The Eighth Circuit also concluded that “the statute does not grant to the Administrator a separate power under § 301 to promulgate by regulation effluent limitations for existing sources.” Ibid, at 1037. Our concern is solely with jurisdiction and in this opinion we do not reach the question of the statutory power of the Administrator. American Iron and Steel Institute v. Environmental Protection Agency, 3 Cir., 526 F.2d 1027, was also an original proceeding in the court of appeals to review regulations appearing in Subchapter N. The Third Circuit disagreed with the CPC International decision of the Eighth Circuit and held that “the Administrator does have the authority to promulgate effluent limitations under section 301.” 526 F.2d p. 1036. Although the Third Circuit did not discuss jurisdiction, it presumed jurisdiction by reviewing effluent limitations pertaining to existing sources. American Meat Institute v. Environmental Protection Agency, 7 Cir., 526 F.2d 442, 1975, was another original proceeding in the court of appeals, to review Subchapter N regulations. The Seventh Circuit declined to follow the Eighth Circuit’s CPC International opinion and held that EPA “had the authority to issue effluent limitations under § 301 and that we have the authority to review the regulations under § 509(b)(1).” 526 F>2d at p. 453. The conflicts among the circuits emphasize the difficulties arising under the vague, and surprisingly imprecise, regulatory statute with which we are concerned. The reasoning, that if the Administrator has power" }, { "docid": "23199562", "title": "", "text": "by whom they are to be established, is nonetheless “further support for the position that Congress intended the section 301(b) limitations to have an independent existence” apart from the permit process. American Iron and Steel Institute v. EPA, supra, 526 F.2d at 1039. Under § 401(a)(1), applicants for any federal license must obtain state certification that they comply with § 301 or that “there is not an applicable effluent limitation . . . under sections 301(b) and 302 . . .” We find this language especially significant because it cannot be construed as referring to §§ 301(a), (c) or (f), the explanation the Eighth Circuit gave for other references to “effluent limitations under § 301.” CPC International Inc. v. Train, supra, 515 F.2d at 1042-1043. In addition, § 505(f), which defines “effluent standard or limitation under this Act” for purposes of § 505 (the citizen suit provision), includes in the definition, “(2) an effluent limitation or other limitation under section 301 or 302 of this Act,” and “(6) a permit or condition thereof . .” We agree with the courts in American Iron and Steel Institute v. EPA, supra, 526 F.2d at 1038, and E. I. DuPont de Nemours & Co. v. Train, 383 F.Supp. 1244, 1251 (W.D.Va.1974), appeal pending, No. 74-2237 (4th Cir.), that under the interpretation of the Act urged by amici here subsections (2) and (6) of § 505(f) would be redundant, and disagree with the Eight Circuit (CPC International Inc. v. Train, supra, 515 F.2d at 1043) that the reference to § 301 in § 505(f)(2) is to § 301(f). In summary, the most natural reading of the language of the Act is that § 301 is a source of authority to promulgate effluent limitations, independent of the § 402 permit procedure. The legislative history also contains support for the EPA position. Senator Bentsen, a member of the Public Works Committee that reported out the original version of the Act, stated during the Senate debate: “In phase I, for point sources of pollutants, effluent limits shall be established not later than January 1, 1976 [now July" } ]

[ { "docid": "1079007", "title": "", "text": "& n. 178. It is evident that these three documents relate to the financial posture of the Penn Central Company and its subsidiaries and affiliates. From our earlier discussion we have concluded that any material related to this subject matter is relevant to the instant litigation. Additionally, it is obvious that these documents would ordinarily be privileged. The privilege that attached to these writings, however, was waived by their production to the SEC. Underwater Storage, Inc. v. United States Rubber Co., 314 F.Supp. 546, 549 (D.D.C.1970); D'Ippolito v. Cities Service Co., 39 F.R.D. 610 (S.D.N.Y.1965); United States v. Krasnov, 143 F.Supp. 184 (E.D.Pa.1956); aff’d per curiam, 355 U.S. 5, 78 S.Ct. 34, 2 L.Ed.2d 21 (1957). The court in Krasnov rejected an assertion of the attorney-client privilege in a context analogous to the situation in the case at bar. There documents had been presented to a grand jury without objection from defendants. The documents were later submitted by plaintiff in support of motion for summary judgment in an antitrust action. Defendants objected to the introduction of these documents on the ground that they fell within the purview of the attorney-client privilege. Rejecting defendants’ contention, the court stated: “As to the . . . documents relied upon by the Government, all of which were presented without claim of privilege, any attempt now to invoke the claim cannot be considered. The privilege once waived cannot be regained .” Id. at 191. See also United States v. Kelsey-Hayes Wheel Co., 15 F.R.D. 461, 464-465 (E.D.Mich.1954). Similarly, in the case under review the documents in question were submitted to the SEC without invocation of the privilege. The privilege, which was previously waived, cannot now be asserted. Accordingly, defendant is directed to turn over the three documents discussed above for inspection and copying by plaintiffs. As to the fourth document —i. e., the press release — produced to the Commission staff during Williams’ appearance, there appears to be a difference of opinion between the parties with respect to whether this document was a draft press release or the actual release. If it was the actual" } ]

[ { "docid": "23465573", "title": "", "text": "Marshall Field & Co., et al., 80 F.R.D. 718 (N.D.Ill.1978); Broad v. Rockwell Int’l Corp., CCH Fed.Sec.L.Rep. ¶ 95,894 (N.D.Tex.1977); Valente v. Pepsico, Inc., 68 F.R.D. 361 (D.Del.1975). In Cohen, for example, the advice of counsel sought to be discovered by plaintiff shareholders antedated the challenged conduct and bore directly upon the element of corporate scienter during the time period of the alleged fraudulent action. Id. at 484-85. Similarly in Panter, the court ordered disclosure of counsel’s contemporaneous advice concerning a tender offer resisted by management where the defendant asserted reliance on “advice of counsel” as a major substantive defense to alleged violations of securities laws. Id. at 723. Significantly, the court did not find “good cause” with respect to documents prepared in anticipation of the Panter or other “possible” shareholders litigation. Id. at 724. See also, Broad v. Rockwell, supra; Valen te v. Pepsico, supra. Application of the Garner criteria here requires that LTV’s claim of privilege be sustained. Forced disclosure of counsel’s remedial advice would do great injury to the corporation’s interest in self-investigation and preparation for litigation. Cf. Upjohn Co. v. United States, supra 101 S.Ct. at 684. Once accused of wrongdoing, management’s need to consult counsel in confidence is self-evident. Moreover, the interests of the corporation at such time are not necessarily coincidental with shareholder plaintiffs complaining of past misconduct. The Plaintiff class is frozen when corporate wrongdoing ends. From that time on, the class interests are adverse to the corporation which has allegedly defrauded it, and possibly adverse to nonparty shareholders as well. Perhaps the deciding factor in this case, however, is the availability of the information sought by the class from other non-privileged sources. As noted in Upjohn, “[a]pplication of the attorney-client privilege to communications such as those involved here ... puts the adversary in no worse position than if the communications had never taken place.” Id. 101 S.Ct. at 686. The class may (as the class has) examine business documents, depose corporate employees as to facts learned independently from counsel’s investigation, obtain pre-existing documents and financial records not prepared by counsel, and question" }, { "docid": "9536250", "title": "", "text": "was litigation ongoing at the time of this correspondence. The extent to which the absence of such facts undercuts defendants’ reliance on this decision is borne out by the court’s lengthy discussion elsewhere in the opinion concerning the significance of the \"in anticipation of litigation” portion of the test for work-product protection. See id. at 725 n. 6. In the course of that discussion, the court in fact cites cases likewise cited by defendants holding that the work product privilege does not apply to advice or opinion letters rendered by an attorney to a client with respect to \"a routine procedure necessary in the securities field and ... not done with litigation in mind,” such as opinion letters on the registration of shares, Garfinkle v. Arcata National Corp., 64 F.R.D. 688, 690 (S.D.N.Y.1974), or circulars prepared in connection with stock offerings. In re Penn Central Commercial Paper Litigation, 61 F.R.D. 453, 467-68 (S.D.N.Y.1973). Despite the inviting analogy of these cases to the essentially routine issuance of annual reports not \"likely generally to involve litigation,” Panter, 80 F.R.D. at 725 n. 6, the Panter court expressly distinguishes the situation, as here, where there existed “a clear threat of litigation 'involving claims which had already arisen.’ ” Id. Indeed, in the instant case, not only had claims arisen, but litigation was pending at the time the documents sought were prepared and those documents were certainly drafted with \"litigation in mind.” . Compare Panter v. Marshall Field & Co., 80 F.R.D. 718, 725-26 (N.D.Ill.1978), relied on by defendants, wherein the court ordered discovery notwithstanding assertions of the work-product privilege on the ground that the advice of counsel was directly at issue and thus the need for production of counsel’s work product was compelling. . Clearly information included in these drafts, but not disclosed in the annual reports—the very information defendants seek—was intended by the client to remain confidential and remains so even though other information was revealed to the public. . United States v. United Shoe Machinery Corp., 89 F.Supp. 357 (D.Mass.1950), cited by the plaintiff is not to the contrary. Indeed, the" }, { "docid": "10995497", "title": "", "text": "Rockwell Int’l, 897 F.2d 1255, 1266 (3d Cir.1990) (quoting In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir.1979))); accord Simon, supra, 816 F.2d at 401. The party seeking to invoke Rule 26(b)(3)’s protection has the burden of establishing “that the sought-after documents were, in fact, prepared in anticipation of litigation.” In re Perrier Bottled Water Litig., 138 F.R.D. 348, 352 (D.Conn.1991) (citation omitted). Although “[t]here is no requirement that the litigation have already commenced in order for the work-product doctrine to be operative, ... there must be more than a remote possibility of litigation.” Fox v. California Sierra Financial Servs., 120 F.R.D. 520, 524 (N.D.Cal.1988) (citing Garfinkle v. Arcata Nat’l Corp., 64 F.R.D. 688, 690 (S.D.N.Y.1974); Panter v. Marshall Field & Co., 80 F.R.D. 718, 725 n. 6 (N.D.Ill.1978)). Otherwise stated, “there must be an identifiable prospect of litigation (i.e., specific claims that have already arisen) at the time the documents were prepared.” Id. at 525 (citing Burlington Indus. v. Exxon Corp., 65 F.R.D. 26, 42-43 (D.Md.1974)); see also Linde Thomson Langworthy Kohn & Van Dyke, P.C. v. RTC, 5 F.3d 1508, 1515 (D.C.Cir.1993) (the document must be “created ‘with a specific claim supported by concrete facts which would likely lead to litigation in mind’” (quoting Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 864 (D.C.Cir.1980))). It follows from the parameters described above that “ ‘[m]aterials assembled in the ordinary course of business, or pursuant to public requirements unrelated to litigation, or for other nonlitigation purposes’ ” are not protected under Rule 26(b)(3). Martin v. Bally’s Park Place Hotel, supra, 983 F.2d at 1260 (quoting Fed.R.Civ.P. 26(b)(3) advisory committee note); see also Linde Thomson, supra, 5 F.3d at 1515; Simon, supra, 816 F.2d at 401; Gerrits v. Brannen Banks of Florida, 138 F.R.D. 574, 576 (D.Colo.1991). This is true ‘““even if the party is aware that the document may also be useful in the event of litigation.” ’ ” Smith v. Conway Org., supra, 154 F.R.D. at 78 (quoting Redvanly v. NYNEX Corp., 152 F.R.D. 460, 465 (S.D.N.Y.1993) (quoting Martin v. Valley Nat’l Bank, 140" }, { "docid": "23711039", "title": "", "text": "sought.” Panter v. Marshall Field & Co., 80 F.R.D. 718, 721 (N.D.Ill.1978); see Barr Marine Products Co., Inc. v. Borg-Warner, 84 F.R.D. 631, 635 (E.D.Pa.1979) (noting that courts have found waiver of the attorney client privilege “where the party resisting ’ discovery raises as a defense that which tran spired between client and counsel, or reliance on advice of counsel, or questions counsel’s authority”). As Blank Rome admits, Robert Jacoby, William Frame and Devaney have all invoked reliance upon advice of counsel as a defense to the claims against them in this litigation. See supra, n. 21. As a result, they have waived the attorney client privilege with respect to all communications they made to Blank Rome concerning the transactions for which they sought Blank Rome’s legal advice. Blank Rome contends that “[t]he fact that an officer asserts that he relied upon advice of eounsel with respect to some issue presented in this litigation does not open to discovery privileged communications as to other issues which are not implicated or involved in the present litigation.” Response of Blank Rome to Certain Defendants’ Amended Motion, at 18. I agree that applicability of attorney client privilege and relevance are two separate issues. Regardless of the waiver of attorney client privilege, the Robert Jacoby, William Frame and Devaney documents need be produced only if they contain information “reasonably calculated to lead to the discovery of admissible evidence.” F.R.C.P. Rule 26(b)(1). I therefore will request the Special Master to review these documents and to order production of those discoverable under Rule 26(b)(1). Robert Jacoby’s, William Frame’s and Devaney’s invocations of reliance upon advice of counsel in their own defense also have waived the attorney client privilege asserted by Blank Rome on behalf of the JFGD joint venture. Because the JFGD joint venture was an unincorporated association of Robert Jacoby, William Frame, Gitomer and Devaney, the joint venture has no claim of privilege other than that of its individual members. In other words, each individual member of the JFGD joint venture must establish each element of the privilege to support the joint venture’s privilege. The" }, { "docid": "18426468", "title": "", "text": "information and the availability of it from other sources; whether, if the shareholders’ claim is of wrongful action by the corporation, it is of action criminal, or illegal but not criminal, or of doubtful legality; whether the communication related to past or to prospective actions; whether the communication is of advice concerning the litigation itself; the extent to which the communication is identified versus the extent to which the shareholders are blindly fishing; the risk of revelation of trade secrets or other information in whose confidentiality the corporation has an interest for independent reasons. 430 F.2d at 1104. . Counsel for the parties have stated that roughly 19,050 out of 20,000 Marshall Field & Co. shareholders representing approximately 9,700,000 out of the 10,000,000 shares have remained as class members in the instant litigation. . See Appendix Documents 1-9 and Exhibit 3, Documents 1 and 3. . See Appendix Documents 20, 21, and 23-28. . While we reject plaintiffs’ argument that the work-product privilege only extends to material generated in anticipation of this or closely related litigation, we note that the “in anticipation of’ portion of the test for work-product protection does limit the doctrine’s scope. Defendants argue that the work-product privilege extends so far as to protect four documents which concern a tender offer that Marshall Field considered making in 1975, see Appendix Exhibit 3, Documents Nos. 1, 2, 3, 5, because they were prepared “in a context with obvious litigation potential.” We believe defendants’ argument overstates the scope of the work-product privilege. Though it is not necessary for a document to have been prepared after the commencement of litigation in order to qualify for work product protection, Stix Products, Inc. v. United Merchants & Manufacturers, Inc., 47 F.R.D. 334, 337 (S.D.N.Y.1969), “work-product immunity requires a more immediate showing than the remote possibility of litigation.” Garfinkle v. Arcata National Corp., supra, 64 F.R.D. at 690. In Garfinkle, the court held that certain documents underlying the issuance of a law firm’s opinion letter on the registration of shares were not protected as work-product. “While the issuance of opinion letters on the" }, { "docid": "17069391", "title": "", "text": "authorities underlying the letter; (3) a partner’s notes on a telephone conversation with the attorney for one of the plaintiffs; and (4) the partner’s notes on a telephone conversation with one of the plaintiffs. I am constrained to agree with the plaintiff that defendant’s reliance on the work product principle is misplaced. That immunity, as embodied in the case law and the provisions of Rule 26(b)(3) of the Federal Rules of Civil Procedure, extends only to those documents prepared in anticipation of litigation or for trial. See Hickman v. Taylor, 329 U.S. 495, 511, 67 S.Ct. 385, 91 L.Ed. 451 (1947); Technograph, Inc. v. Texas Instruments, Inc., 43 F.R.D. 416, 418 (S.D. Practice and Procedure: Civil § 2024 N.Y.1967); Wright and Miller, Federal at 197-198. While one might argue that almost all of the work attorneys do, or the advice they dispense, is in anticipation of litigation or its avoidance, the work product immunity requires a more immediate showing than the remote possibility of litigation. This court held in Stix Products, Inc. v. United Merchants and Manufacturers, Inc., 47 F.R.D. 334, 337 (S.D.N.Y.1969), that: “If the prospect of litigation is identifiable because of specific claims that have already arisen, the fact that, at the time the document is prepared, litigation is still a contingency has not been held to render the privilege inapplicable.” (Emphasis added.) While the issuance of opinion letters on the registration of shares might result in liability for the parties involved, this is a routine procedure necessary in the securities field and is not done with litigation in mind. Defendants have not argued or demonstrated that the requested documents were prepared in contemplation of litigation and thus the claim of work product must be overruled. Accordingly the assertion of privilege in respect of the six documents has no merit and defendant is instructed to produce the documents in question for plaintiffs’ inspection. So ordered." }, { "docid": "23465572", "title": "", "text": "a corporation’s attorney-client privilege. The class here seeks after-the-fact communications concerning offenses already completed: that is, communications exchanged between the party alleged to have committed the offenses and an attorney acting in his professional capacity to represent the party in proceedings involving the alleged offenses. Unlike Garner, management’s remedial decision in 1978 to restate LTV’s prior earnings is not the act of which the class complains. Rather, analogous to the stock sales in Garner, the class complains of the preceding overvaluation of J&L inventory. The Garner decision itself suggests this time based distinction is sound. Among the factors to be considered in assessing “good cause,” the court advised, were whether the communication “related to past or to prospective actions” and whether the material sought consisted of “advice concerning the litigation itself.” Id. at 1104. A review of the cases applying the “good cause” exception supports Defendant’s temporal distinction. None of the decisions subjects post-event attorney-client communications to disclosure under the Gamer rule. See, e. g. Cohen v. Uniroyal, Inc., 80 F.R.D. 480, (E.D.Pa.1978); Panter v. Marshall Field & Co., et al., 80 F.R.D. 718 (N.D.Ill.1978); Broad v. Rockwell Int’l Corp., CCH Fed.Sec.L.Rep. ¶ 95,894 (N.D.Tex.1977); Valente v. Pepsico, Inc., 68 F.R.D. 361 (D.Del.1975). In Cohen, for example, the advice of counsel sought to be discovered by plaintiff shareholders antedated the challenged conduct and bore directly upon the element of corporate scienter during the time period of the alleged fraudulent action. Id. at 484-85. Similarly in Panter, the court ordered disclosure of counsel’s contemporaneous advice concerning a tender offer resisted by management where the defendant asserted reliance on “advice of counsel” as a major substantive defense to alleged violations of securities laws. Id. at 723. Significantly, the court did not find “good cause” with respect to documents prepared in anticipation of the Panter or other “possible” shareholders litigation. Id. at 724. See also, Broad v. Rockwell, supra; Valen te v. Pepsico, supra. Application of the Garner criteria here requires that LTV’s claim of privilege be sustained. Forced disclosure of counsel’s remedial advice would do great injury to the corporation’s interest in" }, { "docid": "18426469", "title": "", "text": "litigation, we note that the “in anticipation of’ portion of the test for work-product protection does limit the doctrine’s scope. Defendants argue that the work-product privilege extends so far as to protect four documents which concern a tender offer that Marshall Field considered making in 1975, see Appendix Exhibit 3, Documents Nos. 1, 2, 3, 5, because they were prepared “in a context with obvious litigation potential.” We believe defendants’ argument overstates the scope of the work-product privilege. Though it is not necessary for a document to have been prepared after the commencement of litigation in order to qualify for work product protection, Stix Products, Inc. v. United Merchants & Manufacturers, Inc., 47 F.R.D. 334, 337 (S.D.N.Y.1969), “work-product immunity requires a more immediate showing than the remote possibility of litigation.” Garfinkle v. Arcata National Corp., supra, 64 F.R.D. at 690. In Garfinkle, the court held that certain documents underlying the issuance of a law firm’s opinion letter on the registration of shares were not protected as work-product. “While the issuance of opinion letters on the registration of shares might result in liability for the parties involved, this is a routine procedure necessary in the securities field and is not done with litigation in mind.” Id. See In re Penn Central Commercial Paper Litigation, 61 F.R.D. 453, 467-68 (S.D.N.Y.1973). While the routine issuance of opinion letters with respect to stock registrations is perhaps less likely generally to involve litigation than documents produced in a proposed tender offer, we do not recognize a per se rule, as defendants apparently wish, that an attorney’s work product in preparing a tender offer or other form of business combination is automatically entitled to work product protection. For documents prepared prior to the filing of a suit, “the prospect of litigation” must be “identifiable because of specific claims that have already arisen.” Stix Products, Inc. v. United Merchants & Manufacturers, Inc., supra, 47 F.R.D. at 337 (emphasis added). Absent a specific showing by defendants that in this particular tender offer in early 1975 there was a clear threat of litigation “involving claims which had already arisen,”" }, { "docid": "9536236", "title": "", "text": "first privilege log, plaintiff asserted only a work-product privilege from producing these drafts, but in their more recent, revised privilege log, asserts in addition an attorney-client privilege. We conclude that these documents are privileged under both doctrines. With respect to the work-product privilege, defendants appear to rely on the rather obvious proposition that Jim Walter Corporation’s annual reports were not prepared “in anticipation of litigation.” The application of this proposition to the present facts is misplaced. The particular documents sought are lawyers’ drafts of material ultimately included as footnotes in those reports and which describe ongoing litigation in which the client was involved. Thus in contrast to the normal business, non-litigation purpose of preparing and issuing an annual report, the process by which an attorney selects the precise language to describe the litigation of his client in such a public document is most inevitably made with that litigation in mind. Moreover, counsel’s various, preliminary drafts, especially when read side-by-side with the footnote as finally adopted, are apt to reveal counsel’s impressions and opinions concerning that litigation. The work-product doctrine is specifically addressed to protecting such impressions and opinions from disclosure. See Hickman v. Taylor, 329 U.S. 495, 510-13, 67 S.Ct. 385, 393-94, 91 L.Ed. 451 (1947). The irony in the instant case is that the descriptions of ongoing litigation actually selected to be included in the annual reports for 1979-80 and 1980-81 are probative of a contemporaneous understanding on the part of the Jim Walter Corporation of the defendants’ policy exclusions for asbestosis which appears to be adverse to the position now asserted by the plaintiff in the litigation before this court. Although such admissions (and preliminary drafts of such admissions) were obviously not made in anticipation of this litigation, we hold that the work-product privilege is applicable because such drafts were prepared in anticipation of some litigation by or for a party in this litigation. Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 25, 103 S.Ct. 2209, 2213, 76 L.Ed.2d 387 (1983); Panter v. Marshall Field & Co., 80 F.R.D. 718, 724 (N.D.Ill.1978). Defendants therefore have the burden" }, { "docid": "18265319", "title": "", "text": "patents sued upon, when it sought to determine whether they were valid and infringed and when it sued Kodak, are all of critical importance to the resolution of this case .... Id., op. at 3-4, 6. See Panter v. Marshall Field & Co., 80 F.R.D. 718, 725-26 (N.D.Ill. 1978); Handgards, Inc. v. Johnson & Johnson, 413 F.Supp. 926, 931-33 (N.D.Cal.1976); Bird v. Penn Central Co., 61 F.R.D. 43, 47 (E.D.Pa.1973); and Kearney & Trecker Corp. v. Giddings & Lewis, Inc., 296 F.Supp. 979, 982 (E.D.Wisc.1969), cited by the court in support of its decision. See also Donovan v. Fitzsimmons, 90 F.R.D. 583, 588 (N.D.Ill. 1981) (discovery allowed over claim of attorney work product privilege where advice of counsel “a critical area of inquiry”); Truck Insurance Exchange v. St. Paul Fire & Marine Ins. Co., 66 F.R.D. 129, 136 (E.D.Pa. 1975) (discovery allowed where activities of opposing counsel basis of moving party’s defense); Bourget v. Gov’t. Employees Ins. Co., 48 F.R.D. 29 (D.Conn.1969) (discovery allowed following in camera inspection where moving party showed good cause to pierce attorney-client and work product privileges); 4 Moore’s Federal Practice ¶ 26.64[4] at 26-447 (1982) (“[Wjhen the activities of counsel are inquired into because they are at issue in the action before the court, there is cause for production of documents, that deal with such activities ....”). Compare Loctite Corp. v. Fel-Pro, Inc., 667 F.2d 577, 582 (7th Cir.1981), aff’g, 210 U.S. P.Q. 280 (N.D.Ill.1980) (holding work product privilege not absolute), with Duplan Corp. v. Moulinage et Retorderie de Chavanoz, 509 F.2d 730 (4th Cir.1974), cert. denied, 420 U.S. 997, 95 S.Ct. 1438, 43 L.Ed.2d 680 (1975) (holding opinion work product privilege absolute). In discussing the Duplan case, the AMI court made these pertinent observations: While an attorney’s private thoughts and impressions are certainly deserving of particular protection, the court has concluded, as indicated in the preceding discussion, that this privacy must take a back seat when advice of counsel is directly at issue in the case. The fear of the Duplan court has merit only if discovery is permitted frequently or if the standards" }, { "docid": "18426470", "title": "", "text": "registration of shares might result in liability for the parties involved, this is a routine procedure necessary in the securities field and is not done with litigation in mind.” Id. See In re Penn Central Commercial Paper Litigation, 61 F.R.D. 453, 467-68 (S.D.N.Y.1973). While the routine issuance of opinion letters with respect to stock registrations is perhaps less likely generally to involve litigation than documents produced in a proposed tender offer, we do not recognize a per se rule, as defendants apparently wish, that an attorney’s work product in preparing a tender offer or other form of business combination is automatically entitled to work product protection. For documents prepared prior to the filing of a suit, “the prospect of litigation” must be “identifiable because of specific claims that have already arisen.” Stix Products, Inc. v. United Merchants & Manufacturers, Inc., supra, 47 F.R.D. at 337 (emphasis added). Absent a specific showing by defendants that in this particular tender offer in early 1975 there was a clear threat of litigation “involving claims which had already arisen,” we do not find defendants’ contention that these documents are privileged “work product” persuasive. . The work product privilege, unlike the attorney-client privilege which belongs to the client, may be invoked only by the attorney. Hercules, Inc. v. Exxon Corp., 434 F.Supp. 136, 156 (D.Del.1977). Being based on policies and purposes different from those which underly the attorney-client privilege, it is clear that a defendant’s waiver of the attorney-client privilege does not necessarily mean that the work-product protection is lost. Handgards, Inc. v. Johnson & Johnson, supra, 413 F.Supp. at 929. . We do not construe the Handgards, Inc. decision as resting upon the narrow ground that the defendant had designated its lawyers as trial witnesses. In analogizing the case before it to Bird v. Penn Central Co., 61 F.R.D. 43 (E.D.Pa.1973), the court grounded its decision upon the broad need for discovery: Similarly, the plaintiff in the case at bar can demonstrate the bad faith of the defendants only through the discovery of information in the hands of the defendants and their attorneys. 413" }, { "docid": "13940576", "title": "", "text": "require the district court, upon remand, to determine whether the documents the government claims are work products are, in fact, work products. See, e. g., Burlington Industries, supra, 65 F.R.D. at 42 — 43; Garfinkle v. Arcata Nat’l Corp., 64 F.R.D. 688, 690 (S.D.N.Y.1974). Even if the district court finds the documents are work products in anticipation of litigation, it may, of course, compel production of those documents, should LP have a “substantial need of the materials in the preparation of [its] case” and be “unable without undue hardship to obtain the substantial equivalent of the materials by other means,” keeping in mind that “[i]n ordering discovery of such materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” FRCP 26(b)(3). See e. g., Burlington Industries, supra, 65 F.R.D. at 33, 43; C. Wright, the Law of Federal Courts § 82 at 366-68 (2d ed. 1970). On remand, the district court should determine the relevancy of the requested documents, and for documents containing relevant material determine the applicability of the government privilege and work product doctrines. In determining the applicability of government privilege, the district court should recognize that it shields only suggestions, advice, recommendations, and opinions, rather than factual and investigatory reports, data and surveys in government’s files. The district court should similarly determine the applicability of the work product doctrine, which we have held applies to work produced in anticipation of other litigation, and whether LP has made a sufficient showing to overcome the work production doctrine. Vacated and remanded. . The discovery rules apply to the government, as a party, just as to any party, though certain privileges, such as governmental privilege, may be available only to the government. United States v. Procter & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958); Amchem Products, Inc. v. GAF Corp., 64 F.R.D. 550, 553 (N.D.Ga.1974); Moore’s Federal Practice § 26.61 [2] (1976); Wright & Miller, Federal Practice &" }, { "docid": "9536237", "title": "", "text": "litigation. The work-product doctrine is specifically addressed to protecting such impressions and opinions from disclosure. See Hickman v. Taylor, 329 U.S. 495, 510-13, 67 S.Ct. 385, 393-94, 91 L.Ed. 451 (1947). The irony in the instant case is that the descriptions of ongoing litigation actually selected to be included in the annual reports for 1979-80 and 1980-81 are probative of a contemporaneous understanding on the part of the Jim Walter Corporation of the defendants’ policy exclusions for asbestosis which appears to be adverse to the position now asserted by the plaintiff in the litigation before this court. Although such admissions (and preliminary drafts of such admissions) were obviously not made in anticipation of this litigation, we hold that the work-product privilege is applicable because such drafts were prepared in anticipation of some litigation by or for a party in this litigation. Federal Trade Commission v. Grolier, Inc., 462 U.S. 19, 25, 103 S.Ct. 2209, 2213, 76 L.Ed.2d 387 (1983); Panter v. Marshall Field & Co., 80 F.R.D. 718, 724 (N.D.Ill.1978). Defendants therefore have the burden of showing a substantial need for the information and the inability to obtain the material by other means. Defendants argue that they have met this burden because the annual reports, and thus the materials relating to these reports, are highly relevant and because the plaintiff has sole custody of these documents, defendants cannot obtain them through other means. Here the work-product, however, is not essential, but merely potentially helpful, and therefore, discovery should be denied. See Republic Gear Co. v. Borg-Warner Corp., 381 F.2d 551, 558 (2d Cir.1967). Already having access to the annual reports, defendants would in effect bolster their showing as to the breadth of the policy exclusions by disclosure of plaintiff’s opinion work-product. Such disclosure requires a “far stronger showing of necessity and unavailability by other means.” Upjohn Co. v. United States, 449 U.S. 383, 402, 101 S.Ct. 677, 689, 66 L.Ed.2d 584 (1980). Indeed, this court has held that opinion work-product is only discoverable, if at all, when the activities of counsel are directly at issue. United States v. Exxon Corp.," }, { "docid": "22447070", "title": "", "text": "order relating thereto. Again, this order is made without prejudice to plaintiffs’ right to request information on other Phillips employees, officers or directors in the future if such additional information is relevant. Request No. 4: Plaintiffs next seek all documents obtained by Phillips’ counsel from third parties in connection with counsel’s preparation of Phillips’ defense in this action. Defendant objects to this request on three grounds: (1) discovery sought is available from a more convenient source; (2) plaintiff has had ample opportunity through prior discovery to obtain the information sought; and (3) the materials sought • are privileged as counsel’s work product. Defendant’s bare allegations in support of its first two objections are unconvincing. Defendant’s assertion of the work product privilege, however, merits more discussion. The issue is whether materials that a party acquires from third parties in preparation for litigation fall within the work product privilege described in Rule 26(b)(3) of the FRCP. The primary purpose of the work product doctrine is to protect the mental impressions, opinions, and legal theories prepared by an attorney in anticipation of litigation. Hickman, 329 U.S. at 510-11, 67 S.Ct. at 393-94. Under Rule 26(b)(3), three conditions must be satisfied in order to establish work product protection. The material in question must: (1) be a document or tangible thing, (2) which was prepared in anticipation of litigation, and (3) was prepared by or for a party, or by or for its representative. In re Grand Jury Subpoenas, 561 F.Supp. 1247, 1257 (S.D.N.Y.1982). The work product immunity generally “extends only to those documents prepared in anticipation of litigation,” Garfinkle v. Arcata Nat’l Corp., 64 F.R.D. 688, 690 (S.D.N.Y.1974), and the burden of showing that the materials were prepared in anticipation of litigation is on the party asserting the privilege. Ferri v. United States Dep’t of Justice, 573 F.Supp. 852, 865 (W.D.Pa.1983); United States v. Willis, 565 F.Supp. 1186, 1219 (S.D.Iowa 1983); Feldman v. Pioneer Petroleum, Inc., 87 F.R.D. 86, 88 (W.D.Okla. 1980). Generally, there is no work product immunity for documents, such as those involved here, that were prepared in the regular course of" }, { "docid": "10995496", "title": "", "text": "(C.D.Cal.1993) (citing In re Subpoenas Duces Tecum, 738 F.2d 1367, 1371 (D.C.Cir.1984)). Thus, as set forth in Rule 26(b)(3), the work product doctrine encompasses (1) documents and other tangible things (2) which were prepared in anticipation of litigation or trial (3) by or for a party or by or for that party’s representative. (1) Documents and Other Tangible Things All of the items defendants claim to be privileged under the work product doctrine are documents. Accordingly, this element does not provide a basis for disagreement over the doctrine’s application in this action. (2) Prepared in Anticipation of Litigation or Trial The work product doctrine protects documents prepared in anticipation of litigation or trial. A document satisfies this element of Rule 26(b)(3) “where ‘in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’ ” Martin v. Bally’s Park Place Hotel and Carsino, 983 F.2d 1252, 1258 (3d Cir.1993) (quoting United States v. Rockwell Int’l, 897 F.2d 1255, 1266 (3d Cir.1990) (quoting In re Grand Jury Proceedings, 604 F.2d 798, 803 (3d Cir.1979))); accord Simon, supra, 816 F.2d at 401. The party seeking to invoke Rule 26(b)(3)’s protection has the burden of establishing “that the sought-after documents were, in fact, prepared in anticipation of litigation.” In re Perrier Bottled Water Litig., 138 F.R.D. 348, 352 (D.Conn.1991) (citation omitted). Although “[t]here is no requirement that the litigation have already commenced in order for the work-product doctrine to be operative, ... there must be more than a remote possibility of litigation.” Fox v. California Sierra Financial Servs., 120 F.R.D. 520, 524 (N.D.Cal.1988) (citing Garfinkle v. Arcata Nat’l Corp., 64 F.R.D. 688, 690 (S.D.N.Y.1974); Panter v. Marshall Field & Co., 80 F.R.D. 718, 725 n. 6 (N.D.Ill.1978)). Otherwise stated, “there must be an identifiable prospect of litigation (i.e., specific claims that have already arisen) at the time the documents were prepared.” Id. at 525 (citing Burlington Indus. v. Exxon Corp., 65 F.R.D. 26, 42-43 (D.Md.1974)); see also Linde Thomson Langworthy Kohn" }, { "docid": "23711038", "title": "", "text": "JFGD joint venture and Blank Rome documents. Response of Blank Rome to Certain Defendants’ Amended Motion, Appendices E and F. But no affidavits have been submitted for the Fitzgerald or Bibi Jacoby documents, and the affidavits purportedly establishing the privilege for Slosberg and Grisby (prepared by attorneys Fred Blume and Nicholas Kouletsis, respectively) do not establish that these clients have claimed the protection of the privilege. I therefore will ask the Special Master to review these documents and conduct such further factfinding as is necessary to determine whether these clients have claimed the privilege and whether the privilege is applicable, and to order production of all non-privileged documents. Any attorney client privilege that may have attached to the Robert Jacoby, Frame, Devaney or JFGD joint venture documents has been waived. If “a party asserts as an essential element of his defense reliance upon the advice of counsel, ... the party waives the attorney-client privilege with respect to all communications, whether written or oral, to or from counsel concerning the transactions for which counsel’s advice was sought.” Panter v. Marshall Field & Co., 80 F.R.D. 718, 721 (N.D.Ill.1978); see Barr Marine Products Co., Inc. v. Borg-Warner, 84 F.R.D. 631, 635 (E.D.Pa.1979) (noting that courts have found waiver of the attorney client privilege “where the party resisting ’ discovery raises as a defense that which tran spired between client and counsel, or reliance on advice of counsel, or questions counsel’s authority”). As Blank Rome admits, Robert Jacoby, William Frame and Devaney have all invoked reliance upon advice of counsel as a defense to the claims against them in this litigation. See supra, n. 21. As a result, they have waived the attorney client privilege with respect to all communications they made to Blank Rome concerning the transactions for which they sought Blank Rome’s legal advice. Blank Rome contends that “[t]he fact that an officer asserts that he relied upon advice of eounsel with respect to some issue presented in this litigation does not open to discovery privileged communications as to other issues which are not implicated or involved in the present litigation.”" }, { "docid": "9536249", "title": "", "text": "statement, the information plaintiff seeks is relevant, but for reasons of public policy, may not be admissible at trial. . The fact that the final drafts were intended to be disclosed to the public does not render the privilege inapplicable. Surely defendants would not argue that prior drafts of the pleadings it has submitted to this court and filed in the public record are not protected from disclosure by the work-product privilege. . Defendants principally rely on Panter to support their position in favor of disclosure. In one sentence in the last paragraph of that opinion, the court summarily rejected a claim of work-product privilege as to letters from counsel to their corporate client approving a proposed footnote to the client’s financial statements bearing on the litigation in issue. We do not read the court’s holding as expansively as defendants. The court does not indicate in what year these letters were transmitted, whether the footnote expressly dealt with ongoing litigation or was only subsequently relevant to the litigation before the court, or even if there was litigation ongoing at the time of this correspondence. The extent to which the absence of such facts undercuts defendants’ reliance on this decision is borne out by the court’s lengthy discussion elsewhere in the opinion concerning the significance of the \"in anticipation of litigation” portion of the test for work-product protection. See id. at 725 n. 6. In the course of that discussion, the court in fact cites cases likewise cited by defendants holding that the work product privilege does not apply to advice or opinion letters rendered by an attorney to a client with respect to \"a routine procedure necessary in the securities field and ... not done with litigation in mind,” such as opinion letters on the registration of shares, Garfinkle v. Arcata National Corp., 64 F.R.D. 688, 690 (S.D.N.Y.1974), or circulars prepared in connection with stock offerings. In re Penn Central Commercial Paper Litigation, 61 F.R.D. 453, 467-68 (S.D.N.Y.1973). Despite the inviting analogy of these cases to the essentially routine issuance of annual reports not \"likely generally to involve litigation,” Panter," }, { "docid": "9536251", "title": "", "text": "80 F.R.D. at 725 n. 6, the Panter court expressly distinguishes the situation, as here, where there existed “a clear threat of litigation 'involving claims which had already arisen.’ ” Id. Indeed, in the instant case, not only had claims arisen, but litigation was pending at the time the documents sought were prepared and those documents were certainly drafted with \"litigation in mind.” . Compare Panter v. Marshall Field & Co., 80 F.R.D. 718, 725-26 (N.D.Ill.1978), relied on by defendants, wherein the court ordered discovery notwithstanding assertions of the work-product privilege on the ground that the advice of counsel was directly at issue and thus the need for production of counsel’s work product was compelling. . Clearly information included in these drafts, but not disclosed in the annual reports—the very information defendants seek—was intended by the client to remain confidential and remains so even though other information was revealed to the public. . United States v. United Shoe Machinery Corp., 89 F.Supp. 357 (D.Mass.1950), cited by the plaintiff is not to the contrary. Indeed, the court identifies as one of the elements necessary for the privilege to apply is that there be a communication relating \"to a fact of which the attorney was informed ... by his client ... without the presence of strangers____” (emphasis supplied). Id. at 358. The court specifically noted that \"a high percentage of the communications passing to or from [in-house] counsel fall outside the privilege because they report or comment on information coming from persons outside the corporation or from public documents, or are summaries of conferences held with or in the presence of outsiders.” Id. at 360. To the extent these memoranda concern notice of claims made from outsiders, they appear not to be based on any confidential communication, and are thus not privileged." }, { "docid": "14938235", "title": "", "text": "not of the claim.” Id. at 346. However, a later report prepared after the claim was several months old and each side was represented by attorneys was in anticipation of litigation. Rogers v. U. S. Steel Corp., 22 F.R.Serv.2d 324 (W.D.Pa.1975). The court held that materials concerning validation of defendant’s personnel procedures, which were prepared after the enactment of Title VII of the Civil Rights Act of 1964, were prepared in anticipation of litigation, although not prepared for the instant suit. Burlington Industries v. Exxon Corp., 65 F.R.D. 26 (D.Md.1974). “In order to satisfy the requirement that documents be prepared in anticipation of litigation, it is not necessary that the documents be prepared after litigation has been commenced.” Id. at 42. SEC v. National Student Marketing Corp., 18 F.R.Serv.2d 1302 (D.D.C.1974). In fraud action brought by the SEC, some memoranda prepared during and principal to investigation of defendants were found to be in anticipation of litigation, while others were not. Documents were not in anticipation of litigation if they were prepared prior to the time the investigation ripened into preparation for litigation, “when the agency accumulates and evaluates factual material — . . .” Id. at 1310. Documents prepared after a draft memorandum to the Commission recommending institution of the injunctive suit was the point in time when it was clear litigation was anticipated. Miles v. Bell Helicopter Co., 385 F.Supp. 1029 (N.D.Ga.1974). The court held that accident reports immediately following a helicopter crash were not prepared in anticipation of litigation simply because such crashes rou tinely gave rise to litigation. The reports were not prepared “in response to a particular claim advanced by any individual, but merely on the contingency that litigation might well arise from the helicopter crash.” Id. at 1033. Garfinkle v. Arcata National Corp., 64 F.R.D. 688 (S.D.N.Y.1974). The court held that although opinion letters regarding the sale of shares without SEC registration might result in liability, the documents were prepared as a routine procedure and were not done with litigation in mind. Sylgab Steel & Wire Corp. v. Imoco-Gateway Corp., 62 F.R.D. 454 (N.D.Ill.1974). In" }, { "docid": "14938236", "title": "", "text": "the investigation ripened into preparation for litigation, “when the agency accumulates and evaluates factual material — . . .” Id. at 1310. Documents prepared after a draft memorandum to the Commission recommending institution of the injunctive suit was the point in time when it was clear litigation was anticipated. Miles v. Bell Helicopter Co., 385 F.Supp. 1029 (N.D.Ga.1974). The court held that accident reports immediately following a helicopter crash were not prepared in anticipation of litigation simply because such crashes rou tinely gave rise to litigation. The reports were not prepared “in response to a particular claim advanced by any individual, but merely on the contingency that litigation might well arise from the helicopter crash.” Id. at 1033. Garfinkle v. Arcata National Corp., 64 F.R.D. 688 (S.D.N.Y.1974). The court held that although opinion letters regarding the sale of shares without SEC registration might result in liability, the documents were prepared as a routine procedure and were not done with litigation in mind. Sylgab Steel & Wire Corp. v. Imoco-Gateway Corp., 62 F.R.D. 454 (N.D.Ill.1974). In a patent infringement action, the court held that opinion letters by defendant’s attorney regarding the scope of the Patent Act, the validity of plaintiffs patent application, and whether it was infringed, were in anticipation of litigation. Even though they were prepared prior to litigation commencing, the court found that they were prepared “with an eye toward litigation.” Id. at 457. Thus the court explained, “If the prospect of litigation is identifiable because of specific claims that have already arisen, the fact that, at the time the document is prepared, litigation is still a contingency has not been held to render the [work product] privilege inapplicable.” Id. at 457. Atlanta Coca Cola Bottling Co. v. Transamerica Insurance Co., 61 F.R.D. 115 (N.D.Ga. 1972). The court held that an insurer’s evaluation of a claim by policy holders was not in “anticipation of litigation” because most claims result in payment and evaluation of claims is the routine principal business of defendant. American Optical Corp. v. Medtronic, Inc., 56 F.R.D. 426 (D.Mass.1972). The court held that where defendant, patent" } ]

[ { "docid": "3946721", "title": "", "text": "claim for injunctive or declaratory relief. See, e.g., Bd. of Sch. Comm’rs of Indianapolis v. Jacobs, 420 U.S. 128, 129, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975) (per curiam) (“[Once] all of the named plaintiffs in the action [have] graduated ... a case or controversy no longer exists.”); Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir.2003) (“[Students’] claims for declaratory and injunctive relief generally become moot when they graduate.”); Stotts v. Cmty. Sch. Dist. No. 1, 230 F.3d 989, 991 (7th Cir.2000) (holding that the “case lacks a live controversy [because the plaintiff] has graduated”); Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000), cert. denied, 532 U.S. 905, 121 S.Ct. 1228, 149 L.Ed.2d 138 (2001) (“It is well-settled that once a student graduates, he no longer has a live case or controversy justifying declaratory and in-junctive relief against a school’s action or policy.”); Penderson v. La. State Univ., 213 F.3d 858, 874-875 (5th Cir.2000) (finding injunctive claims mooted by student’s graduation). B. We have held, however, that graduation from school does not automatically render a case moot if the student’s claims are “capable of repetition, yet evading review.” Brody ex rel. Sugzdinis v. Spang, 957 F.2d 1108, 1113-1115 (3d Cir.1992). This extremely narrow exception to the mootness doctrine is applicable only where: 1) the challenged action is too short in duration to be fully litigated before the case will become moot; and 2) there is a reasonable expectation that the complaining party will be subjected to the same action again. Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam). We begin with the first prong of the test. Although we quite reasonably concluded in Brody that the challenge to religious speech in a graduation ceremony by students who had not yet graduated was not moot because the length of the senior year was “clearly too short to complete litigation and appellate review of a case of this complexity,” Brody, 957 F.2d at 1113 (citing Bd. of Educ. v. Rowley, 458 U.S. 176, 186 n. 9, 102 S.Ct." } ]

[ { "docid": "21598946", "title": "", "text": "MERRITT, Chief Judge, delivered the opinion of the court. RALPH B. GUY, Jr., Senior Circuit Judge (pp. 684-85), delivered a separate concurring opinion. NORRIS, Circuit Judge, concurred in both the opinion of the court and the separate concurrence. MERRITT, Chief Judge. The defendants appeal an injunction from the district court requiring them to remove a portrait of Jesus Christ that has been hanging alone in the hallway of the Bloomingdale Secondary School for the last thirty years. Plaintiff, a student at the school, filed suit alleging that the display of the portrait violated the Establishment Clause of the First Amendment. After the district court’s decision, plaintiff graduated. The issues presented are whether the appeal should be dismissed as moot and whether the display of the portrait violates the Establishment Clause. The facts of the case are undisputed. Eric Pensinger, then a senior, brought suit to remove a copy of Warner Sallman’s famous portrait, “Head of Christ,” from being displayed in a hallway outside the gymnasium and the principal’s office of the Bloomingdale Secondary School. Bloomingdale is a small rural community near Kalamazoo, Michigan. The portrait, originally donated to the school, is not part of a group of paintings nor is it used in conjunction with any class or educational program. Nearby in the same hallway are trophy cases, a painting of the school mascot and a bulletin board, but as Judge Gibson noted, “these seem to have no relation to the picture and do not add to or detract from the impression it makes.” Washegesic v. Bloomingdale Pub. Sch., 813 F.Supp. 559, 560 n. 3 (W.D. Mich.1993). The judge held that the portrait violated the Establishment Clause; and in order to avoid damage to the portrait which is bolted to the wall, he allowed the picture to be covered with a cloth pending the outcome of this appeal. The Mootness Claim Eric Pensinger graduated on June 3,1993. The defendants argue that there is no longer a case or controversy because plaintiff has no stake in the outcome of the ease. Defendants cite eases that a plaintiffs graduation can moot a" }, { "docid": "20495203", "title": "", "text": "(6th Cir.2001)); see also U.S. Const. art. III, § 2. When the issue presented by a case is “no longer ‘live’ ” or when “the parties lack a legally cognizable interest in the outcome,” the case is moot. Ford v. Wilder, 469 F.3d 500, 504 (6th Cir.2006) (citing Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). “A federal court has no authority to render a decision upon moot questions or to declare rules of law that cannot affect the matter at issue.” Cleveland Branch, Nat’l Ass’n for the Advancement of Colored People v. City of Parma, Ohio, 263 F.3d 513, 530 (6th Cir.2001) (citing Church of Scientology v. U.S., 506 U.S. 9, 12, 113 S.Ct. 447, 121 L.Ed.2d 313 (1992)). Thus, courts have a continuing obligation to evaluate whether the claims before them are justiciable and must make the mootness inquiry at every stage of a case, regardless of whether the parties raise the mootness issue themselves. See Slater, 243 F.3d at 276. “The test for mootness is whether the relief sought would, if granted, make a difference to the legal interests of the parties.” McPherson v. Mich. High Sch. Athletic Ass’n, 119 F.3d 453, 458 (6th Cir.1997) (citing Crane v. Ind. High Sch. Athletic Ass’n, 975 F.2d 1315, 1318 (7th Cir.1992)). Where a plaintiff seeks a declaratory judgment, a court making a mootness inquiry must evaluate “whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Super Tire Eng’g Co. v. McCorkle, 416 U.S. 115, 122, 94 S.Ct. 1694, 40 L.Ed.2d 1 (1974) (quoting Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273, 61 S.Ct. 510, 85 L.Ed. 826 (1941)); Coal. for Gov’t Procurement, 365 F.3d at 459 (quoting McCorkle, 416 U.S. at 122, 94 S.Ct. 1694). Moreover, the “completion of activity is not a hallmark of mootness.” Coal. for Gov’t Procurement, 365 F.3d at 458. Rather, “a case is moot only where no effective" }, { "docid": "16101727", "title": "", "text": "employee is entitled to qualified immunity. See Boyd v. Benton Cnty., 374 F.3d 773, 778 (9th Cir.2004); Peng v. Penghu, 335 F.3d 970, 973 (9th Cir.2003). In evaluating whether summary judgment is appropriate, we determine “whether the district court correctly applied the substantive law” and whether, “view[ing] the evidence in the light most favorable to the party against whom summary judgment was granted,” “any genuine issue of material fact exists.” Oltarzewski v. Ruggiero, 830 F.2d 136, 138 (9th Cir.1987). Decisions involving pretrial scheduling orders under Rule 16 and requests for leave to amend an answer are reviewed for abuse of discretion. See Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir .2001). II. Farnan appeals the district court’s refusal to grant his request for declaratory relief. We affirm because Farnan’s graduation from high school mooted this claim. “Article III of the Constitution requires that there be a live case or controversy at the time that a federal court decides the case.” Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987). “It is well-settled that once a student graduates, he no longer has a live case or controversy justifying declaratory or injunctive relief against a school’s action or policy.” Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000); see also DeFunis v. Odegaard, 416 U.S. 312, 316-19, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam). Farnan concedes that his declaratory relief claim would be moot under the general rule, but urges us to hold that his case falls into the “capable of repetition, yet evading review” exception. “That exception, however, is limited to extraordinary cases in which (1) the duration of the challenged action is too short to be fully litigated before it ceases, and (2) there is a reasonable expectation that the plaintiffi ] will be subjected to the same action again.” Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir. 1999) (en banc) (internal quotation marks omitted); see also Davis v. FEC, 554 U.S. 724, 735, 128 S.Ct. 2759, 171 L.Ed.2d" }, { "docid": "22882286", "title": "", "text": "well-settled that once a student graduates, he no longer has a live case or controversy justifying declaratory and injunctive relief against a school’s action or policy.”); Stotts v. Cmty. Unit Sch. Dist. No. 1, 230 F.3d 989, 991 (7th Cir.2000) (holding that the “case lacks a live controversy [because the plaintiff] has graduated”). As the Plaintiffs concede, their claims for declaratory and injunctive relief are moot because they have graduated from VMI. To avoid mootness problems, graduated students often maintain that then-claims fall under an exception to the mootness doctrine where the harm is “capable of repetition, yet evading review.” Murphy v. Hunt, 455 U.S. 478, 482, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (per curiam). This exception is only applicable where: (1) the challenged action is too short in duration to be fully litigated before the case will become moot; and (2) there is a reasonable expectation that the complaining party will be subjected to the same action again. Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Graduated students do not ordinarily qualify for this exception to the mootness doctrine because, once they have graduated, they will never again be subject to the school’s policies. Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 71 (2d Cir.), cert. denied, 534 U.S. 827, 122 S.Ct. 68, 151 L.Ed.2d 34 (2001) (“[T]he ‘capable of repetition, yet evading review’ exception is not available when the issue is students’ rights and the complaining students have graduated from the defendant institution.”); accord Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798-99 (9th Cir.1999) (en banc); Brody v. Spang, 957 F.2d 1108, 1113 (3d Cir.1992). If a claim becomes moot after the entry of a district court’s final judgment and prior to the completion of appellate review, we generally vacate the judgment and remand for dismissal. United States v. Munsingwear, Inc., 340 U.S. 36, 39, 71 S.Ct. 104, 95 L.Ed. 36 (1950) (observing that, where a case has become moot on appeal, “[t]he established practice ... is to reverse or vacate the judgment below and remand with" }, { "docid": "16101728", "title": "", "text": "93 L.Ed.2d 732 (1987). “It is well-settled that once a student graduates, he no longer has a live case or controversy justifying declaratory or injunctive relief against a school’s action or policy.” Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000); see also DeFunis v. Odegaard, 416 U.S. 312, 316-19, 94 S.Ct. 1704, 40 L.Ed.2d 164 (1974) (per curiam). Farnan concedes that his declaratory relief claim would be moot under the general rule, but urges us to hold that his case falls into the “capable of repetition, yet evading review” exception. “That exception, however, is limited to extraordinary cases in which (1) the duration of the challenged action is too short to be fully litigated before it ceases, and (2) there is a reasonable expectation that the plaintiffi ] will be subjected to the same action again.” Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir. 1999) (en banc) (internal quotation marks omitted); see also Davis v. FEC, 554 U.S. 724, 735, 128 S.Ct. 2759, 171 L.Ed.2d 737 (2008) (“Th[e] exception applies where ... there is a reasonable expectation that the same complaining party will be subject to the same action again.”) (internal quotation marks omitted). Because Farnan has graduated, there is no reasonable probability that he will be subjected to the same action again, and “just because this particular case did not reach the Court until [after Farnan’s] graduation,” “it hardly follows that the issue he raises will in the future evade review.” DeFunis, 416 U.S. at 319, 94 S.Ct. 1704; see also Cole, 228 F.3d at 1098-99; Doe, 177 F.3d at 798-99. Even though Farnan’s graduation mooted his claim for declaratory relief, however, his damages claim remains viable. See Cole, 228 F.3d at 1099. “[A] ‘live claim for [even] nominal damages will prevent dismissal for mootness.’ ” Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 425 (9th Cir.2008) (quoting Bernhardt v. Cnty. of L.A., 279 F.3d 862, 871 (9th Cir.2002)) (alterations in original). Accordingly, we proceed to the merits of the appeal. III. A. Before we consider whether Corbett" }, { "docid": "23011331", "title": "", "text": "1118, 1123 (9th Cir.1997); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (explaining that the mootness doctrine derives from the requirement of an Article III case or controversy). A cause of action is moot when the issues “ ‘are no longer “live” or the parties lack a legally cognizable interest in the outcome’ ” of the litigation. City of Erie v. Pap’s A.M., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000) (quoting County of L.A. v. Davis, 440 U.S. 625, 631, 99 S.Ct. 1379, 59 L.Ed.2d 642 (1979)). Mootness, however, is a flexible justiciability doctrine that allows review “if there are present effects that are legally significant.” Jacobus v. Alaska, 338 F.3d 1095, 1104 (9th Cir.2003); see also U.S. Parole Comm’n v. Geraghty, 445 U.S. 388, 400, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980) (explaining that the Court’s “cases demonstrate the flexible character of the Art. III mootness doctrine”). Where a court retains the ability to “ ‘fashion some form of meaningful relief ” between the parties, an appeal is not moot, and the court retains jurisdiction. Dream Palace v. County of Maricopa, 384 F.3d 990, 1000 (9th Cir.2004) (quoting In re Pattullo, 271 F.3d 898, 901 (9th Cir.2001) (order)). Here, although Flint filed his lawsuit prior to his graduation, we must consider whether Flint’s 2004 graduation from the University of Montana renders his cause of action seeking declaratory and injunctive relief against defendants moot. See Harper ex rel. Harper v. Poway Uni- fled Sch. Dist., — U.S. -, 127 S.Ct. 1484, 167 L.Ed.2d 225 (2007); Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir.2001) (“Mootness inquiries ... require courts to look to changing circumstances that arise after the complaint is filed.... ”). Generally, once a student graduates, he no longer has a live case or controversy justifying declaratory and in-junctive relief against a school’s action or policy, and his case is therefore moot. See Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir.1999) (en" }, { "docid": "18259458", "title": "", "text": "he seeks could provide no meaningful relief. In Sandison v. Michigan High School Athletic Association, Inc., 64 F.3d 1026 (6th Cir.1995), the court considered an appeal of a preliminary injunction in favor of high school track competitors challenging the application of eligibility rules to them. The court determined that the issue was moot, reasoning: The 1995 track season has ended, and thus the plaintiffs will have no more races to run. The “capable of repetition yet evading review” exception to mootness does not apply to these plaintiffs because the exception requires not only that the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, but also that there was a reasonable expectation that the same complaining party would be subjected to the same action again.... At oral argument, we learned that Sandison and Stanley graduated from high school in June 1995, which precludes the repetition of another controversy over whether these same plaintiffs may run on their high school teams. Id. at 1029-30 (internal citations and quotation marks omitted). See also Hooban v. Boling, 503 F.2d 648, 650 n. 1 (6th Cir.1974) (holding that request for injunctive relief in civil rights action by law student alleging that his classification by university as an out-of-state student for tuition purposes violated equal protection clause and his right to travel was moot because the law student had graduated from law school). Other courts have held that in similar circumstances, a damage claim will save the lawsuit itself from a mootness challenge, but injunctive relief may not be awarded. See Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir.2004) (injunctive relief could no longer redress the injury and the “capable of repetition, yet evading review” doctrine did not apply, but plaintiffs nominal damages claim saved action from mootness); Mellen v. Bunting, 327 F.3d 355, 364-65 (4th Cir.2003) (plaintiffs’ claim for injunctive relief arising from challenge to constitutionality of supper prayer at Virginia Military Institute became moot upon the plaintiffs’ graduation but the damages claim continued to present a live" }, { "docid": "10035513", "title": "", "text": "the development of a housing project that was already built because the project could still be modified to grant the plaintiff relief); West v. Sec’y of the Dep’t of Transp., 206 F.3d 920, 925 (9th Cir.2000) (allowing challenge to the construction of a highway that was already in use because the district court could still order the highway closed or taken down); Pyramid Lake Paiute Tribe of Indians v. Hodel, 882 F.2d 364, 368 (9th Cir.1989) (allowing challenge to a completed governmental action that threatened a certain species of fish because the court could still remedy the harm through protections in future spawning seasons); Gordon, 849 F.2d at 1245 (same); Columbia Basin Land Prot. Ass’n v. Schlesinger, 643 F.2d 585, 591 n. 1 (9th Cir.1981) (finding that a suit to enjoin construction of a power line was not moot because, although it had been built, it could still be removed). The common thread in these cases is that “the violation complained of may have caused continuing harm and ... the court can still act to remedy such harm by limiting its future adverse effects.” Gordon, 849 F.2d at 1245. In such a scenario, “the parties clearly retain a legally cognizable interest in the outcome.” Id. Appellants’ claim for declaratory relief does not fall within this scenario. They do not face a continuous, remediable harm that concretely affects their “existing interests.” Headwaters, 893 F.2d at 1015. Appellants have never contested that the presence of feral pigs on Santa Cruz Island endangered important archeological and ecological resources; rather, they simply desired an alternative means of resolving the problem. Now that the pigs have been killed, Appellants have suffered whatever harm could conceivably result from the challenged agency action. See Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir.1999) (en banc) (holding that a student’s claims for injunctive and declaratory relief against a school’s graduation prayer policy were moot once the student graduated because he or she had “already ... suffered any injury that would result from the alleged forced participation in prayers [in the] graduation ceremony”). Because we" }, { "docid": "20658876", "title": "", "text": "F.3d at 126 (internal quotation marks omitted) (quoting South Dakota v. Dole, 483 U.S. 203, 207, 107 S.Ct; 2793, 97 L.Ed.2d 171 (1987); citing New York v. United States, 505 U.S. 144, 167, 112 S.Ct. 2408, 120 L.Ed.2d 120 (1992)). The court further concluded that, “[njothing in the Spending Clause, however, forecloses Congress from placing conditions on federal funds that reach beyond what the Constitution requires.” Madison, 474 F.3d at 127 (citing Dole, 483 U.S. at 205, 107 S.Ct. 2793). Accordingly, Defendants’ motion to dismiss Plaintiffs Rehabilitation Act claims will be DENIED. V. MOOTNESS Here, Plaintiffs ADA and Rehabilitation Act claims are predicated upon his denial of an interpreter in conjunction with his educational classes and programs at Powhatan Correctional Center (“PCC”). The only educational program, in which Plaintiff has participated at PCC is the Functional Literacy Program. Plaintiff participated in the program from August 26, 2002, to May 2, 2003, and then again on November 10, 2003, through August 30, 2005. Plaintiff was removed from the program on May 2, 2003, and again on August 30, 2005, because he violated the program’s prohibition against three unexcused absences. Plaintiff has not sought to reenroll in the Functional Literacy Program or in any other educational classes since his second dismissal from the program on August 30, 2005. It is well settled that, “[w]hen students challenge the constitutionality of school policies, their claims for declaratory and injunctive relief generally become moot when they graduate.” Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir.2003) (citing Bd. of Sch. Comm’rs of Indianapo lis v. Jacobs, 420 U.S. 128, 129, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975); Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000); Stotts v. Cmty. Unit Sch. Dist. No. 1, 230 F.3d 989, 991 (7th Cir.2000)). Similar mootness concerns arise with respect to a plaintiffs claims for injunctive relief pertaining to the administration of programs or classes when a plaintiff ceases to participate in the programs and does not indicate that he intends to reenroll. See Linkenhoker v. Weinberger, 529 F.2d 51, 52 (4th Cir.1975); see also" }, { "docid": "3739789", "title": "", "text": "whether a case is moot. Prier v. Steed, 456 F.3d 1209, 1212 (10th Cir.2006). “We have previously held that ‘when an individual graduates from school there no longer exists a live controversy necessary to support an action to participate in interscholastic activity.’ ” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir.2007) (quoting Bauchman v. W. High Sch., 132 F.3d 542, 548 (10th Cir.1997)). In Bauchman, a Jewish high school student challenged her choir instructor’s alleged advocacy of Mormonism during classes and choir performances, but graduated from high school while the case was pending on appeal. 132 F.3d at 546. After determining that the defendant school officials “no longer ha[d] the power or opportunity to adversely affect Ms. Bauchman’s constitutional rights,” we dismissed her declaratory and injunctive relief claims as moot. Id. at 548; see also Fischbach v. N.M. Activities Ass’n, 38 F.3d 1159, 1160 (10th Cir.1994) (holding that due to student plaintiffs graduation, “the power of the [defendant state activities association] to adversely affect his rights ha[d] ended” and the case was moot). In Lane, the plaintiffs were the student editors of a college newspaper, who claimed that the school had impinged on their exercise of freedom of the press. We similarly held that because the plaintiffs had graduated and no longer served on the board of the student newspaper, the plaintiffs’ claims for declaratory and injunctive relief were moot. Lane, 495 F.3d at 1186-87. Here, Corder complains that the School District’s unwritten policy for requiring prior approval of graduation speeches impinges on her rights under the First Amendment and the Equal Protection Clause. Corder, however, graduated from high school in 2006 and is no longer a student under the School District’s control. She will never again be subject to the unwritten policies of the School District requiring prior content review of valedictory speeches. The School District no longer has the power or the opportunity to adversely affect Corder’s rights as they pertain to valedictory speeches. As a result, Corder’s demands for declaratory and injunctive relief are moot. An exception to the mootness doctrine exists for cases that are" }, { "docid": "21598947", "title": "", "text": "is a small rural community near Kalamazoo, Michigan. The portrait, originally donated to the school, is not part of a group of paintings nor is it used in conjunction with any class or educational program. Nearby in the same hallway are trophy cases, a painting of the school mascot and a bulletin board, but as Judge Gibson noted, “these seem to have no relation to the picture and do not add to or detract from the impression it makes.” Washegesic v. Bloomingdale Pub. Sch., 813 F.Supp. 559, 560 n. 3 (W.D. Mich.1993). The judge held that the portrait violated the Establishment Clause; and in order to avoid damage to the portrait which is bolted to the wall, he allowed the picture to be covered with a cloth pending the outcome of this appeal. The Mootness Claim Eric Pensinger graduated on June 3,1993. The defendants argue that there is no longer a case or controversy because plaintiff has no stake in the outcome of the ease. Defendants cite eases that a plaintiffs graduation can moot a claim against a school, Board of School Comm’rs of Indianapolis v. Jacobs, 420 U.S. 128, 129, 95 S.Ct. 848, 849-50, 43 L.Ed.2d 74 (1975) and Ahmed v. University of Toledo, 822 F.2d 26 (6th Cir.1987); but these cases are not on point. In Jacobs, plaintiffs challenged the constitutionality of school rules which regulated the student newspaper. The rules no longer applied to the plaintiffs after graduation. The Supreme Court dismissed the appeal when it learned at oral argument that all the plaintiffs had graduated. Jacobs, 420 U.S. at 129, 95 S.Ct. at 849-50. In Ahmed, foreign students challenged the constitutionality of a university policy requiring them to carry health insurance. By the time the case reached the appellate level, the plaintiffs had graduated or dropped out of school permanently and the court dismissed the ease as moot. Ahmed, 822 F.2d at 28. In Jacobs and Ahmed the plaintiffs ceased to have any interest in the challenged policy and could not be affected by it after they were no longer students. The rules could no longer" }, { "docid": "20658877", "title": "", "text": "August 30, 2005, because he violated the program’s prohibition against three unexcused absences. Plaintiff has not sought to reenroll in the Functional Literacy Program or in any other educational classes since his second dismissal from the program on August 30, 2005. It is well settled that, “[w]hen students challenge the constitutionality of school policies, their claims for declaratory and injunctive relief generally become moot when they graduate.” Mellen v. Bunting, 327 F.3d 355, 364 (4th Cir.2003) (citing Bd. of Sch. Comm’rs of Indianapo lis v. Jacobs, 420 U.S. 128, 129, 95 S.Ct. 848, 43 L.Ed.2d 74 (1975); Cole v. Oroville Union High Sch. Dist., 228 F.3d 1092, 1098 (9th Cir.2000); Stotts v. Cmty. Unit Sch. Dist. No. 1, 230 F.3d 989, 991 (7th Cir.2000)). Similar mootness concerns arise with respect to a plaintiffs claims for injunctive relief pertaining to the administration of programs or classes when a plaintiff ceases to participate in the programs and does not indicate that he intends to reenroll. See Linkenhoker v. Weinberger, 529 F.2d 51, 52 (4th Cir.1975); see also White Tail Park, Inc. v. Stroube, 413 F.3d 451, 457-58 (4th Cir.2005). Here, Plaintiff has not been enrolled in any educational program for over a year and a half. Plaintiff does not suggest that his withdrawal from his educational programs was related to the failure to provide an interpreter, nor does he suggest that he intends to reenroll in an educational program. Accordingly, Plaintiffs demands for injunctive relief are moot and will be DISMISSED. Defendants’ motion to dismiss (Docket No. 27) will be GRANTED IN PART AND DENIED IN PART. An appropriate Order shall accompany this Memorandum Opinion. ORDER (Granting In Part And Denying In Part Defendants’ Motion To Dismiss) In accordance with the accompanying Memorandum Opinion, it is ORDERED that the motion to dismiss (Docket No. 27) is GRANTED IN PART AND DENIED IN PART. The Clerk is DIRECTED to send a copy of the Memorandum Opinion and Order to Plaintiff and counsel of record. And it is so ORDERED. . For example, in Lane, the Court concluded that, \"Title II’s requirement of program" }, { "docid": "22863644", "title": "", "text": "S.Ct. 386, 389, 130 L.Ed.2d 233 (1994) (citations omitted). . We address in section D of this Discussion Plaintiffs' claim that possible future attendance at a SUNY unit by one or more Plaintiffs precludes a determination of mootness. . Plaintiffs do not contend on appeal that their claim to attorney fees precludes a determination of mootness. Any such claim would be barred by Lewis, 494 U.S. at 480, 110 S.Ct. at 1255. . In a postargument submission pursuant to Fed. R.App.P. 28(j), Plaintiffs called to our attention Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir.1994), in which a student at a high school sued to have a religious picture removed from the school on First Amendment grounds, and graduated from the school after achieving a favorable district court decision that the defendants appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit ruled that the appeal was not moot because the prominently placed painting impacted upon visitors to the school as well as students, and the plaintiff continued to visit the school on a regular basis. See 33 F.3d at 681. Assuming that this case is correctly decided, it is distinguishable. The Complaint asserts the rights of students, not visitors, to host and attend sales demonstrations in dormitories on SUNY campuses." }, { "docid": "18259459", "title": "", "text": "quotation marks omitted). See also Hooban v. Boling, 503 F.2d 648, 650 n. 1 (6th Cir.1974) (holding that request for injunctive relief in civil rights action by law student alleging that his classification by university as an out-of-state student for tuition purposes violated equal protection clause and his right to travel was moot because the law student had graduated from law school). Other courts have held that in similar circumstances, a damage claim will save the lawsuit itself from a mootness challenge, but injunctive relief may not be awarded. See Utah Animal Rights Coalition v. Salt Lake City Corp., 371 F.3d 1248, 1257 (10th Cir.2004) (injunctive relief could no longer redress the injury and the “capable of repetition, yet evading review” doctrine did not apply, but plaintiffs nominal damages claim saved action from mootness); Mellen v. Bunting, 327 F.3d 355, 364-65 (4th Cir.2003) (plaintiffs’ claim for injunctive relief arising from challenge to constitutionality of supper prayer at Virginia Military Institute became moot upon the plaintiffs’ graduation but the damages claim continued to present a live controversy); Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 218 (3d Cir.2003) (although a student’s First Amendment claims for injunctive and declaratory relief became moot upon her graduation, her damages claim continued to present a live controversy); Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir.1999) (en banc) (“A student’s graduation moots claims for declaratory and injunctive relief, but it does not moot claims for monetary damages.”). The precedents require, therefore, that the Court deny the plaintiffs’ request for declaratory and injunctive relief as moot. III. The Court finds that the undisputed facts demonstrate that the plaintiffs may not recover against the Saginaw School District on their failure-to-train theory. Although the plaintiffs have shown that the individual defendant engaged in conduct that violated plaintiff Joel Curry’s speech rights under the First Amendment, the individual defendant is entitled to qualified immunity as a matter of law. The requests for declaratory and injunctive relief are moot. Accordingly, it is ORDERED that the plaintiffs’ motion for summary judgment [dkt # 25] is DENIED" }, { "docid": "23011332", "title": "", "text": "“ ‘fashion some form of meaningful relief ” between the parties, an appeal is not moot, and the court retains jurisdiction. Dream Palace v. County of Maricopa, 384 F.3d 990, 1000 (9th Cir.2004) (quoting In re Pattullo, 271 F.3d 898, 901 (9th Cir.2001) (order)). Here, although Flint filed his lawsuit prior to his graduation, we must consider whether Flint’s 2004 graduation from the University of Montana renders his cause of action seeking declaratory and injunctive relief against defendants moot. See Harper ex rel. Harper v. Poway Uni- fled Sch. Dist., — U.S. -, 127 S.Ct. 1484, 167 L.Ed.2d 225 (2007); Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir.2001) (“Mootness inquiries ... require courts to look to changing circumstances that arise after the complaint is filed.... ”). Generally, once a student graduates, he no longer has a live case or controversy justifying declaratory and in-junctive relief against a school’s action or policy, and his case is therefore moot. See Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir.1999) (en banc). When a student’s record contains negative information derived from allegedly unconstitutional school regulations, however, that information may jeopardize the student’s future employment or college career. Hatter v. L.A. City High Sch. Dist., 452 F.2d 673, 674 (9th Cir.1971). So long as a former student’s record contains evidence of disciplinary sanctions, and the former student seeks “an order requiring school officials to expunge from school records all mention of the disciplinary action,” the action is not moot. Id. Here, Flint’s amended complaint sought such an order of expungement. Flint sued for (1) a declaration that ASUM’s limitation on campaign expenditures violated his free speech rights, (2) an injunction preventing ASUM from removing him from his elected position on the ASUM Senate, and (3) an injunction ordering ASUM to remove from his record “all findings, proceedings, recommendations, and actions taken as a result of’ the election code violations. Consequently, despite Flint’s graduation from the University in 2004, his controversy remains “live” because of his third claim for relief. Given that mootness, unlike standing, is a flexible" }, { "docid": "23337173", "title": "", "text": "future graduations. With the exception of Cole’s and Niemeyer’s damage claims, which we discuss below in the context of qualified immunity, we disagree with all of appellants’ arguments. A. Whether the Claims Brought by Cole and Chris and Jason Niemeyer are Moot As the Supreme Court has recently noted, both standing and mootness are jurisdictional issues deriving from the requirement of a case or controversy under Article III. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 120 S.Ct. 693, 703-04, 145 L.Ed.2d 610 (2000); see also Blair v. Shanahan, 38 F.3d 1514, 1518 (9th Cir.1994) (“ ‘Article III of the Constitution requires that there be a live case or controversy at the time that a federal court decides the case ....’” (quoting Burke v. Barnes, 479 U.S. 361, 363, 107 S.Ct. 734, 93 L.Ed.2d 732 (1987))). It is well-settled that once a student graduates, he no longer has a live case or controversy justifying declaratory and injunctive relief against a school’s action or policy. See Doe v. Madison Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir.1999) (en banc). Thus, this court has no jurisdiction to entertain the claims for injunctive relief brought by Cole and Chris and Jason Niemeyer unless an exception to mootness applies. The “capable of repetition, yet evading review” exception to mootness applies only when (1) the challenged action is too short in duration to be fully litigated before cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again. See Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Madison Sch. Dist., 177 F.3d at 798. In Madison School District, we held that this exception did not apply to a student’s Establishment Clause challenge to a school district’s graduation prayer policy because the student had graduated, and thus would “never again be compelled to participate in a prayer at his or her high school graduation ceremony.” 177 F.3d at 799. Similarly, as graduates of Oroville, Cole and Chris and Jason" }, { "docid": "22863643", "title": "", "text": "They also invoke an observation in Heldman v. Sobol, 962 F.2d 148, 154 n. 7 (2d Cir.1992), that the mootness doctrine may be premised upon prudential, rather than constitutional, considerations. See also United States v. IBT, 955 F.2d 171, 174 (2d Cir.1992) (recognizing \"flexible” nature of mootness doctrine). In our view, both the Honig majority opinion, 484 U.S. at 317-18, 108 S.Ct. at 601, and the subsequent, unanimous ruling of the Court in Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 1253-54, 108 L.Ed.2d 400 (1990), make it quite clear that the mootness doctrine is based upon the case or controversy requirement of Article III of the Constitution. We are fortified in this conclusion by the Court's recent, unanimous declaration that \"no statute could authorize a federal court to decide the merits of a legal question not posed in an Article III case or controversy. For that purpose, a case must exist at all stages of appellate review.” U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, - U.S. -, -, 115 S.Ct. 386, 389, 130 L.Ed.2d 233 (1994) (citations omitted). . We address in section D of this Discussion Plaintiffs' claim that possible future attendance at a SUNY unit by one or more Plaintiffs precludes a determination of mootness. . Plaintiffs do not contend on appeal that their claim to attorney fees precludes a determination of mootness. Any such claim would be barred by Lewis, 494 U.S. at 480, 110 S.Ct. at 1255. . In a postargument submission pursuant to Fed. R.App.P. 28(j), Plaintiffs called to our attention Washegesic v. Bloomingdale Public Schools, 33 F.3d 679 (6th Cir.1994), in which a student at a high school sued to have a religious picture removed from the school on First Amendment grounds, and graduated from the school after achieving a favorable district court decision that the defendants appealed to the Sixth Circuit Court of Appeals. The Sixth Circuit ruled that the appeal was not moot because the prominently placed painting impacted upon visitors to the school as well as students, and the plaintiff continued to visit the school" }, { "docid": "3307642", "title": "", "text": "adopted in Newdow v. Eagen, 309 F.Supp.2d 29, 34-35 (D.D.C.2004), where Newdow’s challenge to the use of chaplins in the United States Congress was dismissed for lack of standing. Quoting from Valley Forge, the court found that New-dow’s asserted right to observe Congress free of religion did not give rise to standing. Id. So too, the Ninth Circuit in New-dow I, examining very similar alleged injuries, found no standing based on Valley Forge. Nonetheless, it is true that federal courts, notwithstanding the important Article III standing considerations identified in Valley Forge, have found injury-in-fact where a complaint is founded upon observing offensive religious materials. In such cases, the plaintiffs have alleged a “personal connection” with the challenged conduct, usually in the plaintiffs home or community. See, e.g., Suhre v. Haywood County, 131 F.3d 1083, 1087 (4th Cir.1997) (county resident had standing to challenge Ten Commandment display in county courthouse); Washegesic v. Bloomingdale Pub. Sch., 33 F.3d 679, 681-83 (6th Cir.1994) (former student had standing to confront religious portrait at school he formerly attended); Saladin v. City of Milledgeville, 812 F.2d 687, 692-93 (11th Cir.1987) (plaintiff who was part of city and received mail from city could challenge religious symbols on city’s seal); Arizona Civil Liberties Union v. Dunham, 112 F.Supp.2d 927, 935 (D.Ariz.2000) (“The genuine feeling of exclusion from the community in which one resides, and the deep offense perceived from an insult to one’s religious view committed by the government in one’s community, satisfy the injury prong of standing.”). This concept of standing limited to those with a “personal connection” to the complained of conduct is generally not present in cases dealing with prayer. Still, in most cases involving prayer, plaintiffs implicitly have alleged a “personal connection” with the event at which the prayer is read. See Lee v. Weisman, 505 U.S. 577, 584, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992) (plaintiff had standing as a currently enrolled student in the school system); cf. Doe v. Madison School Dist. No. 321, 177 F.3d 789, 797 (9th Cir.1999) (en banc) (parent lacked standing to challenge prayer at graduation when parent" }, { "docid": "3739788", "title": "", "text": "courts, 28 U.S.C. § 1291, we have no subject matter jurisdiction over a case if it is moot. Unified Sch. Dist. No. 259, Sedgwick County, Kan. v. Disability Rights Ctr. of Kan., 491 F.3d 1143, 1146-47 (10th Cir.2007). “Constitutional mootness doctrine is grounded in the Article III requirement that federal courts may only decide actual, ongoing cases or controversies.” Seneca-Cayuga Tribe v. Nat’l Indian Gaming Comm’n, 327 F.3d 1019, 1028 (10th Cir.2003) (internal quotations and alteration omitted). “It is well established that what makes a declaratory judgment action a proper judicial resolution of a case or controversy rather than an advisory opinion — is the settling of some dispute which affects the behavior of the defendant toward the plaintiff. Hence, this court has explained that a plaintiff cannot maintain a declaratory or injunctive action unléss he or she can demonstrate a good chance of being likewise injured by the defendant in the future.” Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir.1997) (internal quotations, citations and alterations omitted). We review de novo the question of whether a case is moot. Prier v. Steed, 456 F.3d 1209, 1212 (10th Cir.2006). “We have previously held that ‘when an individual graduates from school there no longer exists a live controversy necessary to support an action to participate in interscholastic activity.’ ” Lane v. Simon, 495 F.3d 1182, 1186 (10th Cir.2007) (quoting Bauchman v. W. High Sch., 132 F.3d 542, 548 (10th Cir.1997)). In Bauchman, a Jewish high school student challenged her choir instructor’s alleged advocacy of Mormonism during classes and choir performances, but graduated from high school while the case was pending on appeal. 132 F.3d at 546. After determining that the defendant school officials “no longer ha[d] the power or opportunity to adversely affect Ms. Bauchman’s constitutional rights,” we dismissed her declaratory and injunctive relief claims as moot. Id. at 548; see also Fischbach v. N.M. Activities Ass’n, 38 F.3d 1159, 1160 (10th Cir.1994) (holding that due to student plaintiffs graduation, “the power of the [defendant state activities association] to adversely affect his rights ha[d] ended” and the case was moot). In" }, { "docid": "23337174", "title": "", "text": "Sch. Dist. No. 321, 177 F.3d 789, 798 (9th Cir.1999) (en banc). Thus, this court has no jurisdiction to entertain the claims for injunctive relief brought by Cole and Chris and Jason Niemeyer unless an exception to mootness applies. The “capable of repetition, yet evading review” exception to mootness applies only when (1) the challenged action is too short in duration to be fully litigated before cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subjected to the same action again. See Spencer v. Kemna, 523 U.S. 1, 17, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); Madison Sch. Dist., 177 F.3d at 798. In Madison School District, we held that this exception did not apply to a student’s Establishment Clause challenge to a school district’s graduation prayer policy because the student had graduated, and thus would “never again be compelled to participate in a prayer at his or her high school graduation ceremony.” 177 F.3d at 799. Similarly, as graduates of Oroville, Cole and Chris and Jason Niemeyer will never again be required to omit sectarian references from their Oroville graduation presentations. This case is therefore different from Lee v. Weisman, 505 U.S. 577, 112 S.Ct. 2649, 120 L.Ed.2d 467 (1992), in which the Supreme Court concluded that, although the student who objected to the graduation prayer at her middle school had herself graduated, the Court had “a live and justiciable controversy” before it because she was enrolled as a high school student in the same district and it appeared “likely, if not certain, that an invocation and benediction [would] be conducted at her high school graduation.” Id. at 584, 112 S.Ct. 2649. Thus, Cole’s and the Niemeyers’ injunctive claims are moot. The appellants try to avoid the jurisdictional defect in the injunctive claims of Cole and Chris and Jason Niemeyer by asserting that they present a live controversy under the third-party standing doctrines of First Amendment overbreadth and jus tertii. Appellants’ claim is more properly characterized as an overbreadth claim than as jus tertii because the appellants base their third-party claim" } ]

[ { "docid": "23074306", "title": "", "text": "and relevant New York Stock Exchange Rules. The parties’ briefs and the amicus brief submitted by the Equal Employment Opportunity Commission (“EEOC”) in support of the plaintiff were all written prior to the Supreme Court’s decision in Gilmer v. Interstate/Johnson Lane Corp., — U.S.-, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). In Gilmer, the Supreme Court held that the same arbitration clause, contained in the same securities registration form and New York Stock Exchange rule, was enforceable under the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1-15 (1988), and that an action brought by a securities dealer for age discrimination under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. §§ 621-634, was subject to mandatory arbitration. Gilmer, 111 S.Ct. at 1657. As will be elucidated below, we find Gilmer to be dispositive of every argument presented by the plaintiff and the EEOC in this appeal. Cf. Alford v. Dean Witter Reynolds, Inc., 905 F.2d 104 (5th Cir.1990), vacated, — U.S. -, 111 S.Ct. 2050, 114 L.Ed.2d 456 (1991) (decision finding Title VII claims non-arbitrable under the FAA vacated and remanded for reconsideration in light of Gilmer). Gilmer involved a suit by a former registered securities representative for discrimination under the ADEA. Like Willis, the plaintiff in Gilmer was required to register as a securities representative with several stock exchanges, including the NYSE, as a condition of employment. The plaintiffs registration application, the Uniform Application for Securities Industry Registration or Transfer, provided that the plaintiff, among other things, “ ‘agree[d] to arbitrate any dispute, claim or controversy’ arising between him and [his employer] ‘that is required to be arbitrated under the rules, constitutions or by-laws of the organizations with which [he] register^].’ ” Gilmer, 111 S.Ct. at 1650 (quoting Securities Registration Form). Under NYSE Rule 347, quoted above, the plaintiff was required to arbitrate any controversy “ ‘arising out of the employment or termination of employment of such representative.’ ” Id. at 1651 (quoting Rule 347). The defendant in Gilmer claimed that the arbitration agreement in the Securities Registration Form and the FAA required that the plaintiff’s claim" } ]

[ { "docid": "14877915", "title": "", "text": "judicial order compelling arbitration is mandatory, not discretionary. Id. The FAA requires courts to “rigorously enforce agreements to arbitrate.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (citation omitted). In particular, the Supreme Court has roundly endorsed arbitration in the employment-discrimination context: We have been clear in rejecting the supposition that the advantages of the arbitration process somehow disappear when transferred to the employment context. Arbitration agreements allow parties to avoid the costs of litigation, a benefit that may be of particular importance in employment litigation, which often involves smaller sums of money than disputes concerning commercial contracts .... The Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law; as we noted in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991), “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). With this in mind, “[t]o decide a motion to compel arbitration of claims based on statutory rights, a district court must determine only: (1) whether the parties agreed to arbitrate; (2) the scope of that agreement; (3) if federal statutory claims are asserted, whether Congress intended those claims to be nonarbitrable.” Mitsubishi, 473 U.S. at 626-28, 105 S.Ct. 3346. In addition, generally applicable state-law contract defenses such as fraud, duress, or unconscionability may invalidate arbitration agreements or clauses thereto. 9 U.S.C. §2; AT & T, 131 S.Ct. at 1746; see also 9 U.S.C. § 1; Doctor’s Assocs. v. Casarotto, 517 U.S. 681, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996) (collecting cases); Perry, 482 U.S. at 492 n. 9, 107 S.Ct. 2520. Likewise, arbitration of statutory rights will only be compelled “so long as the prospective litigant" }, { "docid": "16788650", "title": "", "text": "unilaterally implemented a Dispute Resolution Policy requiring arbitration of job-related claims, but the employee had never indicated that he agreed to the policy or signed any agreement to that effect. The Court found that no meeting of the minds, and therefore no enforceable contract, existed. Id. at 118. In its discussion of this issue, the Court noted in a parenthetical citation that in Wright v. Universal Maritime Serv. Corp., 525 U.S. 70, 79-82, 119 S.Ct. 391, 142 L.Ed.2d 361 (1998), the Supreme Court held that a general arbitration clause in a collective bargaining agreement does not waive an employee’s right to a judicial forum for a claim of employment discrimination unless such a waiver is clear and unmistakable. Here, plaintiff is not waiving any substantive rights but simply subjecting her claims to a different forum. It is “clear” that statutory claims are fully subject to binding arbitration outside of the context of collective bargaining. Cole, 105 F.3d at 1478. “[B]y agreeing to arbitrate a statutory claim, a party does not forego the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than judicial, forum.” Id. (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (citations omitted)). See also Circuit City, 121 S.Ct. 1302, 1312-13 (“The Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited under federal law...”). As discussed above, plaintiffs waiver of the judicial forum is valid under applicable contract law and is not subject to any additional requirements. See, e.g., Haskins v. Prudential Insurance Co., 230 F.3d 231, 239, 241 (6th Cir.2000) (rejecting imposition of the requirement that there be a “knowing” agreement to arbitrate, in addition to a valid agreement under applicable state law principles of contract law, and noting that the decision of the Ninth Cir- cult to impose such a requirement \"has been rejected by nearly every court that has had an opportunity to pass on it.\") (and cases" }, { "docid": "7843690", "title": "", "text": "a condition of employment are almost universally enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. (“FAA”), Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). Nevertheless, arbitration agreements may be attacked under “such grounds as exist at law or in equity for the revocation of a contract.” 9 U.S.C. § 2. The Sixth Circuit has consistently held that pre-dispute mandatory arbitration agreements are valid. Haskins v. Prudential Ins. Co. of Am., 230 F.3d 231, 239 (6th Cir.2000); Willis v. Dean Witter Reynolds, Inc. 948 F.2d 305, 310 (6th Cir.1991). Specifically, the Sixth Circuit has held that the employees may be required, as a condition of employment, to waive their right to bring future Title YII claims in court. Willis, supra. Almost every other Circuit to consider this issue has agreed with the Sixth Circuit. However, although the Supreme Court and lower courts endorse the use of arbitration, courts continue to emphasize that an employee cannot be required to forfeit any “substantive rights” as a condition of employment. See Gilmer v. Interstate/ Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). Thus, “... even if arbitration is generally a suitable forum for resolving a particular statutory claim, the specific arbitral forum provided under an arbitration agreement must nevertheless allow for the effective vindication of that claim.” Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306 (6th Cir.2000). Some courts have held that requiring a plaintiff to pay for the right to vindicate their federal substantive rights would amount to an insurmountable obstacle. See e.g. Paladino v. Avnet Computer Tech, Inc., 134 F.3d 1054 (11th Cir.1998); Shankle v. B-G Maint. Mgmt. of Colo., Inc., 163 F.3d 1230 (10th Cir.1999)(finding that requiring the Plaintiff to pay costs renders the arbitral forum invalid); Cole v. Burns Int'l Sec. Serv., 105 F.3d 1465 (D.C.Cir.1997)(same). Cf. Bradford v. Rockwell Semiconductor Sys., Inc., 238 F.3d 549, 556 (4th Cir.2001)(declining to follow the per se rule, but holding that courts should assess whether the fees associated with arbitration are prohibitive to" }, { "docid": "19004630", "title": "", "text": "Skirchak were on vacation over the period from November 25th to December 1st and would not have read the November 25th e-mail until they returned. Further, an objective and company-wide approach to notice is consistent with how this court handled the issue in Campbell. See Campbell, 407 F.3d at 555 (noting that \"the sufficiency of the notice turns on whether, under the totality of the circumstances, the employer’s communication would have provided a reasonably prudent employee notice of the waiver”). . The parties argue about the impact of language in Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 32, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991): \"[E]ven if the arbitration could not go forward as a class action or class relief could not be granted by the arbitrator, the fact that the [ADEA] provides for the possibility of bringing a collective action does not mean that individual attempts at conciliation were intended to be barred.” (quoting Nicholson v. CPC Int’l Inc., 877 F.2d 221, 241 (3rd Cir.1989) (Becker, J., dissenting)) (internal quotation marks omitted). This argument about unenforceability vel non of class waiver clauses under the FLSA stems from the recognition that parties to a pre-dispute arbitration agreement do not \"forgo the substantive rights afforded by the statute; [they] only submit[] to their resolution in an arbitral, rather than a judicial, forum.” Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (quoting Gilmer, 500 U.S. at 26, 111 S.Ct. 1647) (internal quotation mark omitted). While the FAA is silent on questioning the effectiveness of the arbitral forum, Gilmer read into the FAA a test of whether a litigant \"effectively may vindicate [his or her] statutory cause of action in the arbitral forum....” Gilmer, 500 U.S. at 28, 111 S.Ct. 1647 (quoting Mitsubishi, 473 U.S. at 637, 105 S.Ct. 3346) (internal quotation mark omitted); see also Rosenberg, 170 F.3d at 11. These arguments go to the issue of whether waivers of class actions under the FLSA are inherently unfair or unenforceable, an issue we do not reach. . We acknowledge the able amicus" }, { "docid": "1982156", "title": "", "text": "only escape arbitration by showing fraud, mistake, or duress, Meijer ignores the remaining portion of the holding in Haskins, where this court made an allowance for “some other ground upon which a contract may be voided.” Haskins, 230 F.3d at 239. This language sufficiently encompasses the “effective vindication” analysis prescribed by the United States Supreme Court and endorsed by this circuit in Floss. Indeed, subsequent cases have arrived at this precise conclusion, construing the Floss “effective vindication” analysis as another ground on which a mandatory arbitration agreement can be voided. See Cooper v. MRM Inv. Co., 199 F.Supp.2d 771, 775 (M.D.Tenn.2002); French v. First Union Sec., Inc., 209 F.Supp.2d 818, 826 (M.D.Tenn.2002); Rembert v. Ryan’s Steak Houses, 235 Mich.App. 118, 596 N.W.2d 208, 218 (1999). For example, in Cooper, the court extensively discussed Haskins in the course of assessing the validity of a pre-dispute agreement to arbitrate signed by a restaurant employee. In so doing, the court essentially divided the Haskins analysis into two separate stages. First, it undertook the Haskins contractual analysis that Meijer promotes in the instant appeal as the only means for invalidating such an agreement. Secondly, contrary to the position Meijer espouses, the court held that: Even if this Court found no contractual defenses to the enforcement of the [arbitration agreement], Plaintiffs substantive rights are affected by the agreement. Courts have recognized that, although arbitration agreements are generally favored, they will not be enforced if they affect an individual’s substantive rights. Gilmer, 500 U.S. at 28, 111 S.Ct. 1647, 114 L.Ed.2d 26. Where an individual is unable to vindicate his or her rights because of an obstacle erected by an arbitration agreement, the court may not enforce that arbitration agreement. Cooper, 199 F.Supp.2d at 780-81. Furthermore, even if Meijer’s interpretation of Haskins were correct, Haskins has been superseded by our en banc deei sion in Morrison v. Circuit City Stores, Inc., 317 F.3d 646 (6th Cir.2003). As we held in Morrison, “[t]he Supreme Court has made clear that statutory rights, such as those created by Title VII, may be subject to mandatory arbitration only if the" }, { "docid": "13354719", "title": "", "text": "Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) (citations omitted). See also Fuller v. Pep Boys-Manny, Moe & Jack of Del., Inc., 88 F.Supp.2d 1158 (D.Colo.2000). The Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”) codifies a strong federal policy favoring the enforcement of arbitration agreements. Sections 3 and 4 of the FAA permit a Court to compel arbitration when one party has failed or refused to comply with an arbitration agreement. Neither party disputes that the FAA controls this case. The Supreme Court made it clear this year in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) that arbitration clauses in employment contracts are enforceable. See also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27-33, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (arbitration agreement between an employee and employer subjected the employee’s age-discrimination claim to mandatory arbitration); Shankle v. B-G Maint. Mgmt. of Co., Inc., 163 F.3d 1230 (10th Cir.1999) (recognizing that Gilmer reaffirmed the Arbitration Act’s presumption in favor of enforcing agreements to arbitrate statutory claims, but holding agreement unenforceable because of fee-shifting provision); McWilliams v. Logicon, Inc., 143 F.3d 573 (10th Cir.1998) (affirming compelled arbitration under the ADA); Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1487 (10th Cir.1994) (Title VII claims subject to compulsory arbitration); Fuller v. Pep Boys-Manny, Moe & Jack of Del., Inc., 88 F.Supp.2d 1158 (D.Colo.2000) (employment discrimination claims subject to compulsory arbitration). Thus, an Arbitration Agreement in an employment contract generally results in manda tory arbitration, even after the employee has left the company. Here, however, Plaintiffs argue that although they signed an agreement to arbitrate, no contract to arbitrate was formed. When a dispute concerns whether there is a valid and enforceable arbitration agreement in the first instance, there is no presumption of arbitrability on this initial issue. See Riley Mfg. Co., Inc. v. Anchor Glass Container Corp., 157 F.3d 775, 779 (10th Cir.1998). A court has jurisdiction to determine initially the existence of a valid arbitration agreement" }, { "docid": "8424948", "title": "", "text": "that “[a] written provision in ... a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract ... shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. The Act has been interpreted to possess the primary purpose of enforcing private contractual agreements to arbitrate. See, e.g., Mitsubishi, 473 U.S. at 625-626, 105 S.Ct. 3346; Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985). To that end, the Act provides that where a party to an arbitration agreement fails, neglects, or refuses to submit a matter to arbitration, the other party may seek to compel arbitration. 9 U.S.C. § 4. In Gilmer, the Court upheld an arbitration agreement of a claim under the ADEA and stated that the statutory substantive rights are unaffected by the choice of dispute resolution. 500 U.S. at 26, 111 S.Ct. 1647. The Court further noted that “[s]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbi-tral forum,- the statute will continue to serve both its remedial and deterrent function.” Id. at 28, 111 S.Ct. 1647 (quoting Mitsubishi, 473 U.S. at 637, 105 S.Ct. 3346). Following Gilmer, federal courts continually enforced arbitrations of employment-discrimination claims under Title VII as well as under the ADEA. See, e.g., Gannon, 262 F.3d at 683 (Title VII); Austin v. Owens-Brockway Glass Container, Inc., 78 F.3d 875, 882 (4th Cir.1996), cert. denied, 519 U.S. 980, 117 S.Ct. 432, 136 L.Ed.2d 330 (1996) (Title VII and ADEA); Metz v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 39 F.3d 1482, 1487 (10th Cir. 1994) (Title VII). Finally, in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001), the Court resolved any lingering question concerning the FAA’s applicability to arbitration agreements in the employment context. It held that with a limited exception (not applicable here), arbitration agreements covering employment-related claims fall within the FAA’s provisions." }, { "docid": "2225032", "title": "", "text": "a judicial forum. See, e.g., Prudential Ins. Co. v. Lai, 42 F.3d 1299, 1305 (9th Cir.1994). It held that Ryan’s had not met that standard in this case. II Arbitration has become a common tool in resolving employment disputes in recent years, and employers are increasingly requiring employees to sign contracts obligating them to arbitrate disputes as a condition of employment. The Supreme Court’s recent decision in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001), removes any lingering doubts as to whether these agreements are enforceable under the FAA. In the wake of Circuit City, it is clear that arbitration agreements in the employment context, like arbitration agreements in other contexts, are to be evaluated according to the same standards as any other contract. The Supreme Court has repeatedly counseled that the FAA leaves no room for judicial hostility to arbitration proceedings and that courts should not presume, absent concrete proof to the contrary, that arbitration systems will be unfair or biased. See, e.g., Green Tree Financial Corp. v. Randolph, 531 U.S. 79, 121 S.Ct. 513, 522, 148 L.Ed.2d 373 (2000); Gilmer v. Interstate/ Johnson Lane Corp., 500 U.S. 20, 30, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). In this appeal, Ryan’s argues that the district court violated these principles when it determined that the EDS system was inherently biased against employees. While the district court was correct to recognize that at some point an arbitral procedure may become so biased (perhaps because of “evident partiality” of the arbitrators, perhaps for another reason) that an award would not be entitled to recognition and enforcement, we are concerned that the district court placed too much weight on certain specifics of this system that, in and of themselves, do not distinguish it from many others that have passed muster (such as funding from someone principally associated with the employer, see Gilmer, supra, or limited discovery, id. at 30-32, 111 S.Ct. 1647). The court placed little weight on the safeguards that EDS had built into its system, particularly the unwritten rules that La-Coste, who is" }, { "docid": "1982151", "title": "", "text": "F.3d 358, 363 (6th Cir. 1993). When, however, the district court denies summary judgment based solely upon legal grounds, we review the denial de novo. Id. Because the district court denied McMullen’s summary judgment motion solely upon legal grounds, we review this denial de novo. The Supreme Court has held that agreements to arbitrate employment disputes as a condition of employment are generally enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA). Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). This court has consistently upheld the validity of pre-dispute mandatory arbitration agreements. Haskins, 230 F.3d at 239; Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 310 (6th Cir.1991). It is well settled that judicial protection of pre-dispute arbitral agreements extends to agreements to arbitrate statutory employment discrimination claims. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); Willis, 948 F.2d at 312. Arbitration of statutory claims is appropriate because “[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.” Gilmer, 500 U.S. at 26, 111 S.Ct. 1647 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). Notwithstanding a general policy favoring such agreements, there are circumstances under which courts will not enforce pre-dispute mandatory arbitration agreements with regard to statutory employment discrimination claims. In Floss, we held that, “even if arbitration is generally a suitable forum for resolving a particular statutory claim, the specific arbitral forum provided under an arbitration agreement must nevertheless allow for the effective vindication of that claim.” Floss, 211 F.3d at 313. The central issue in this case is whether Meijer’s exclusive control over the pool, of potential arbitrators renders the arbitral forum so fundamentally unfair as to prevent McMullen from effectively vindicating her statutory rights, thereby precluding enforcement of the pre-dispute agreement to arbitrate the statutory claims. Before reaching this central" }, { "docid": "6870826", "title": "", "text": "relief.” Tenn.Code. Ann. § 47-18-110. The statute of repose for violation of the Tennessee Securities Act is two years. Tenn.Code. Ann. § 48-2-122(h). Both statutes of repose may be tolled by a showing of fraudulent concealment, and the toll continues until the reasonably diligent plaintiff discovers the fraud. Fahmer v. S.W. Mfg., Inc., 48 S.W.3d 141, 145 (Tenn.2001). Lastly, the statute of limitations for a breach of fiduciary duty is three years, Tenn.Code. Ann. § 28-3-105, and the statute of limitations for commercial negligence is three years. F. Arbitration of Non-Class Claims Agreements to arbitrate disputes are generally favored. Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). The Supreme Court has recently held that contractual agreements to arbitrate disputes are almost universally enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. (“FAA”), Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). The Sixth Circuit has consistently held that pre-dispute mandatory arbitration agreements are valid. Haskins v. Prudential Ins. Co. of Am., 230 F.3d 231, 239 (6th Cir.2000); Willis v. Dean Witter Reynolds, Inc. 948 F.2d 305, 310 (6th Cir. 1991). However, although the Supreme Court and lower courts endorse the use of arbitration, courts continue to emphasize that an arbitration agreement cannot force a party to forfeit any “substantive rights.” See Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 28, 111 S.Ct. 1647, 114 L.Ed.2d 26 (199Í)(no waiver of substantive rights in the employment discrimination context). Thus, “... even if arbitration is generally a suitable forum for resolving a particular statutory claim, the specific arbitral forum provided under an arbitration agreement must nevertheless allow for the effective vindication of that claim.” Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306 (6th Cir.2000). Additionally, since arbitration agreements are creatures of contract, a party cannot be required to submit to arbitration unless he or she has agreed to do so. United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960)." }, { "docid": "999540", "title": "", "text": "26 (1991)). “Pursuant to th[is] liberal policy, ‘any doubts concerning the scope of arbi-tral issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability.’ ” O’Neil v. Hilton Head Hosp., 115 F.3d 272, 273-74 (4th Cir.1997) (quoting Moses H. Cone, 460 U.S. at 24-25, 103 S.Ct. 927). When parties have entered into a valid and enforceable agreement to arbitrate their disputes and the dispute at issue falls within the scope of that agreement, the FAA requires federal courts to stay judicial proceedings, see 9 U.S.C.A. § 3, and compel arbitration in accordance with the agreement’s terms, see 9 U.S.C.A. § 4. It is settled that the provisions of the FAA, and its policy favoring the resolution of disputes through arbitration, apply to employment agreements to arbitrate discrimination claims brought pursuant to federal statutes, including Title VII of the Civil Rights Act. See Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001); Hooters of Am., Inc. v. Phillips, 173 F.3d 933, 937 (4th Cir.1999). Such an agreement is enforceable because “ ‘[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than judicial, forum.’ ” Hooters, 173 F.3d at 937 (quoting Gilmer, 500 U.S. at 26, 111 S.Ct. 1647). If “the prospective litigant effectively may vindicate his or her statutory cause of action in the arbitral forum,” the claim is appropriately subjected to arbitration in lieu of litigation. Green Tree, 531 U.S. at 89, 121 S.Ct. 513 (internal quotation marks and alteration omitted). The strength of this well-established policy favoring the enforcement of valid arbitration agreements, however, does not end our inquiry. Rather, courts are called upon to determine whether the particular dispute at issue is one to be resolved through arbitration. In doing so, “we engage in a limited review to ensure that the dispute is arbitrable — i.e., that" }, { "docid": "23039360", "title": "", "text": "Act, 9 U.S.C. §§ 1 et seq. (the “FAA”), which was enacted in 1925 to reverse the longstanding judicial hostility toward arbitration. See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626-27, 105 S.Ct. 3346, 3354, 87 L.Ed.2d 444 (1985); Weeks v. Harden Mfg. Corp., 291 F.3d 1307, 1312 (11th Cir.2002). The FAA “embodies a ‘liberal federal policy favoring arbitration agreements.’ ” Hill v. Rent-A-Center, Inc., 398 F.3d 1286, 1288 (11th Cir.2005) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 941, 74 L.Ed.2d 765 (1983)). The purpose of the FAA was “to relieve congestion in the courts and to provide parties with an alternative method for dispute resolution that is speedier and less costly than litigation.” Indus. Risk Insurers v. M.A.N. Gutehoffnungshutte GmbH, 141 F.3d 1434, 1440 (11th Cir.1998) (quotation marks, brackets, and citation omitted). The FAA generally provides for the enforceability of “a contract evidencing a transaction involving commerce.” 9 U.S.C. § 2. The United States Supreme Court has clarified that the FAA generally applies to contracts of employment except those involving “transportation workers.” Circuit City v. Adams, 532 U.S. 105, 119, 121 S.Ct. 1302, 1311, 149 L.Ed.2d 234 (2001); Hill, 398 F.3d at 1289. Further, “courts have consistently found that claims arising under federal statutes may be the subject of arbitration agreements and are enforceable under the FAA.” Weeks, 291 F.3d at 1313; see Circuit City, 532 U.S. at 123, 121 S.Ct. at 1313; Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 1652, 114 L.Ed.2d 26 (1991); Mitsubishi Motors, 473 U.S. at 628, 105 S.Ct. at 3354; Bender v. A.G. Edwards & Sons, Inc., 971 F.2d 698, 700 (11th Cir.1992). Indeed, compulsory arbitration agreements are now common in the workplace, and it is not an unlawful employment practice for an employer to require an employee to arbitrate, rather than litigate, rights under various federal statutes, including employment-discrimination statutes. See Weeks, 291 F.3d at 1313-14. Furthermore, under the FAA, arbitration agreements are “valid, irrevocable, and enforceable, save upon such grounds as exist at law" }, { "docid": "8788718", "title": "", "text": "the instant matter, the Court finds that Plaintiff was not engaged in the movement of goods in interstate commerce in the same manner of seamen and railroad workers while she worked as a store manager for Defendant. Therefore, the Agreement signed between Plaintiff and Defendant for the arbitration of all employment disputes falls within the type of contracts contemplated by the FAA. See Cosgrove v. Shearson Lehman Bros., No. 95-3432, 1997 WL 4783, 1997 U.S.App. LEXIS 392, at *4 (6th Cir. Jan. 6, 1997). Furthermore, the Sixth Circuit recognizes that both statutory and common law claims may be subject to an arbitration agreement enforceable under the FAA. See Cosgrove, 1997 WL 4783, 1997 U.S.App. LEXIS 392, at *5-*6 (citing Gil-mer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (holding that claims arising under the Age Discrimination in Employment Act (“ADEA”) may be subject to an enforceable arbitration agreement); Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 310 (6th Cir.1991) (extending the holding of Gilmer to claims arising under Title VII)). The Supreme Court reiterated in Gilmer that, “ ‘[hjaving made the bargain to arbitrate, the party should be held to it unless Congress itself has evinced an intention to preclude a waiver of judicial remedies for the statutory rights at issue.’ ” Id., 500 U.S. at 26, 111 S.Ct. 1647 (quoting Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 628, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985)). In this case, the Agreement purports to apply to “any and all previously unasserted claims, disputes, or controversies arising out of or relating to [Plaintiffs] application or candidacy for employment, employment and/or cessation of employment with [Defendant].” The Agreement also explicitly states that it applies to actions brought under federal, state, and local statutory or common law, including the ADEA, Title VII, the Americans with Disabilities Act, the law of contract, and the law of tort. Plaintiffs seven-count Complaint contends that Defendant unlawfully discharged her in violation of Title VII, Ohio Rev.Code § 4112, Ohio public policy, and Ohio common law. Because we" }, { "docid": "13354718", "title": "", "text": "Moreover, it appears that the Handbook, Exhibit A, the Contract Disclaimer, Exhibits B-E, and the Arbitration Acknowledgment, Exhibits F-I, constitute an employee package. Yellow Cab argues that the existence of the Arbitration Agreement requires that this case be arbitrated. There is a strong federal policy favoring arbitration for dispute resolution, and this policy “requires a liberal reading of arbitration agreements.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 23 n. 27, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). This means that any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration. See id. at 24-25, 103 S.Ct. 927; Coors Brewing Co. v. Molson Breweries, 51 F.3d 1511, 1514 (10th Cir.1995) (“All doubts are to be resolved in favor of arbitrability”) (citations and quotations omitted). District courts must defer to arbitration “unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.” United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-583, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960) (citations omitted). See also Fuller v. Pep Boys-Manny, Moe & Jack of Del., Inc., 88 F.Supp.2d 1158 (D.Colo.2000). The Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”) codifies a strong federal policy favoring the enforcement of arbitration agreements. Sections 3 and 4 of the FAA permit a Court to compel arbitration when one party has failed or refused to comply with an arbitration agreement. Neither party disputes that the FAA controls this case. The Supreme Court made it clear this year in Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) that arbitration clauses in employment contracts are enforceable. See also Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 27-33, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (arbitration agreement between an employee and employer subjected the employee’s age-discrimination claim to mandatory arbitration); Shankle v. B-G Maint. Mgmt. of Co., Inc., 163 F.3d 1230 (10th Cir.1999) (recognizing that Gilmer reaffirmed the" }, { "docid": "1743581", "title": "", "text": "resolved in favor of arbitration.” Booker v. Robert Half Int’l, Inc., 315 F.Supp.2d 94, 97 (D.D.C.2004); see also Gilmer, 500 U.S. at 24-25, 111 S.Ct. 1647 (noting that the purpose of the FAA, which mandates a “ ‘liberal federal policy favoring arbitration agreements,’ ” was to “reverse the longstanding judicial hostility to arbitration agreements ... and to place arbitration agreements upon the same footing as other contracts”) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983)). This “[i]s at bottom a policy guaranteeing the enforcement of private contractual arrangements.” Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 625, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985). The Supreme Court and the District of Columbia Circuit have both held that the provisions of the FAA are applicable to agreements to arbitrate contained in employment contracts. See, e.g., Circuit City Stores, Inc., v. Adams, 532 U.S. 105, 123, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (“The Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law ....”); Gilmer, 500 U.S. at 26, 111 S.Ct. 1647 (“It is by now clear that statutory claims may be the subject of an arbitration agreement, enforceable pursuant to the FAA.”); Cole v. Burns Int’l Sec. Servs., 105 F.3d 1465, 1470 (D.C.Cir.1997) (“We hold that section 1 of the FAA does not exclude all contracts of employment that affect commerce .... ”). Moreover, a wide variety of statutory claims, including Title VII claims, may be subject to an arbitration agreement. See, e.g., Circuit City, 532 U.S. at 110, 121 S.Ct. 1302 (noting that claims arising under California’s Fair Employment and Housing Act are subject to arbitration); Booker, 315 F.Supp.2d at 94 (noting that the plaintiffs claim of a violation of the District of Columbia Human Rights Act is subject to arbitration); Emeronye v. CACI Int’l, Inc., 141 F.Supp.2d 82, 87 (D.D.C.2001) (holding that Title VII and 42 U.S.C. § 1981 claims" }, { "docid": "1982150", "title": "", "text": "decision to grant Meijer’s motion for summary judgment is reviewed de novo, Smith v. Ameritech, 129 F.3d 857, 863 (6th Cir.1997), as is the district court’s decision to grant Meijer’s motion to compel arbitration, Wiepking v. Prudential-Bache Securities, Inc., 940 F.2d 996, 998 (6th Cir.1991). Similarly, the district court’s decisions regarding the existence of a valid arbitration agreement and the arbitrability of a particular dispute are reviewed de novo. Floss v. Ryan’s Family Steak Houses, Inc., 211 F.3d 306, 311 (6th Cir.2000). A district court’s denial of summary judgment is an interlocutory order that is not ordinarily appealable, but when the appeal from a denial of summary judgment is presented together with an appeal from a grant of summary judgment, we have jurisdiction to review the denial. Thomas v. United States, 166 F.3d 825, 828 (6th Cir.1999). When a district court denies a motion for summary judgment because it determines that there exists a genuine issue of material fact, we review the denial only for an abuse of discretion. Garner v. Memphis Police Dep’t, 8 F.3d 358, 363 (6th Cir. 1993). When, however, the district court denies summary judgment based solely upon legal grounds, we review the denial de novo. Id. Because the district court denied McMullen’s summary judgment motion solely upon legal grounds, we review this denial de novo. The Supreme Court has held that agreements to arbitrate employment disputes as a condition of employment are generally enforceable under the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (FAA). Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). This court has consistently upheld the validity of pre-dispute mandatory arbitration agreements. Haskins, 230 F.3d at 239; Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 310 (6th Cir.1991). It is well settled that judicial protection of pre-dispute arbitral agreements extends to agreements to arbitrate statutory employment discrimination claims. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); Willis, 948 F.2d at 312. Arbitration of statutory claims is appropriate because “[b]y agreeing to arbitrate a" }, { "docid": "7397225", "title": "", "text": "claims under Title VII to be arbitrable. See Circuit City, 532 U.S. at 123, 121 S.Ct. 1302 (“The Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law.”); Gold v. Deutsche Aktiengesellschaft, 365 F.3d 144, 147 (2d Cir.2004) (“Courts have consistent ly found that [statutory claims of employment discrimination] can be subject to mandatory arbitration.” (citing Desiderio v. National Association of Securities Dealers, Inc., 191 F.3d 198, 206 (2d Cir.1999))); Henry v. Turner Construction Co., No. 09 Civ. 9366, 2010 WL 2399423, at *2 (S.D.N.Y. June 14, 2010) (“It is well settled that Congress intends Title VII claims to be arbitrable.” (citing 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, -, 129 S.Ct. 1456, 1467, 173 L.Ed.2d 398 (2009))). However, “‘[b]y agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum.’ ” Circuit City, 532 U.S. at 123, 121 S.Ct. 1302 (alteration in original) (quoting Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991)); Desiderio, 191 F.3d at 205-06 (“Moreover, the substantive rights found in the statute are not in any way diminished by our holding that arbitration may be compelled in this case, since only the forum — an arbitral rather than a judicial one — is affected, and plaintiffs rights may be as fully vindicated in the former as in the latter.”); see also Mastrobuono, 514 U.S. at 63-64, 115 S.Ct. 1212 (refusing to enforce choice-of-law clause that would have practical effect of prohibiting arbitrator from awarding punitive damages because “it seems unlikely that petitioners were actually aware ... that by signing a standard-form agreement to arbitrate disputes they might be giving up an important substantive right”); Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 637 n. 19, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985) (noting that if arbitration clause and other contractual" }, { "docid": "512102", "title": "", "text": "had been decided after Gold’s Rule 60 motion wás denied, the district court in March 2003 denied Gold’s request and closed the case. Gold now appeals from that order. II. Discussion On appeal, Gold renews his arguments that (1) Title VII claims are not subject to mandatory arbitration; and (2) in the alternative, the special circumstances of his case render the arbitration clause invalid. We review a district court’s determination of arbitrability de novo. Chelsea Square Textiles, Inc. v. Bombay Dyeing and Mfg. Co., 189 F.3d 289, 295 (2d Cir.1999). A. Arbitrability of Title VII Claims In addressing Gold’s claims, we note first the strong federal policy — manifested in the Federal Arbitration Act (“FAA”), 9 U.S.C. § 1 et seq.—favoring arbitration. Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24-25, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991); Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983). As we have acknowledged before, the Supreme Court, this court and other courts have all indicated that “the ancient judicial hostility to arbitration is a thing of the past.” Halligan v. Piper Jaffray, Inc., 148 F.3d 197, 200 (2d Cir.1998). Indeed, the strong presumption in favor of arbitration has survived even the “greater scrutiny,” id. at 201, given to the use of mandatory pre-dispute arbitration agreements, like the one Gold signed, to resolve statutory claims of employment discrimination. Courts have consistently found that such claims can be subject to mandatory arbitration. See, e.g., Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 123, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (“The Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law[.]”); Gilmer, 500 U.S. at 35, 111 S.Ct. 1647 (ADEA); Desiderio, 191 F.3d at 203, 206 (Title VII). Nevertheless, again relying on the Ninth Circuit’s decision in Duffield v. Robertson Stephens & Co., 144 F.3d at 1199-1200, Gold urges us to reverse the district court. In Duffield, the Ninth" }, { "docid": "7843689", "title": "", "text": "between me and KFC, its related companies and/or their current or former employees. Such claims would include any concerning compensation, employment including, but not limited to any claims concerning (sexual harassment), or termination of employment ... In any arbitration, the prevailing rules of the American Arbitration Association and, to the extent\" not inconsistent, the prevailing rules of the Federal Arbitration Act will apply. (Doc. No. 16, Exh. A)(herein, “KFC Arbitration Agreement”). Defendants now argue that Plaintiff and Defendants have bargained for mandatory arbitration, and thus her claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”), and the Tennessee Human Rights Act, Tenn. Code Ann. §§ 4-21-101 et seq. Plaintiff responds that there is no agreement to arbitrate between herself and these particular Defendants, and, even if there is an agreement, that agreement is unenforceable because it require the Plaintiff to pay a portion of the costs associated with arbitration. II. LEGAL STANDARDS The Supreme Court has recently held that agreements to arbitrate employment disputes as a condition of employment are almost universally enforceable under the Federal Arbitration Act, 9 U.S.C. §§ 1, et. seq. (“FAA”), Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001). Nevertheless, arbitration agreements may be attacked under “such grounds as exist at law or in equity for the revocation of a contract.” 9 U.S.C. § 2. The Sixth Circuit has consistently held that pre-dispute mandatory arbitration agreements are valid. Haskins v. Prudential Ins. Co. of Am., 230 F.3d 231, 239 (6th Cir.2000); Willis v. Dean Witter Reynolds, Inc. 948 F.2d 305, 310 (6th Cir.1991). Specifically, the Sixth Circuit has held that the employees may be required, as a condition of employment, to waive their right to bring future Title YII claims in court. Willis, supra. Almost every other Circuit to consider this issue has agreed with the Sixth Circuit. However, although the Supreme Court and lower courts endorse the use of arbitration, courts continue to emphasize that an employee cannot be required to forfeit any “substantive rights” as a" }, { "docid": "18079238", "title": "", "text": "often presented in disputes arising from the employment relationship ... and the necessity of bifurcation of proceedings in those cases where state law precludes arbitration of certain types of employment claims but not others. The considerable complexity and uncertainty that [a broader reading of § l’s exclusion] would introduce into the enforceability of arbitration agreements in employment contracts would call into doubt the efficacy of alternative dispute resolution procedures adopted by many of the Nation’s employers, in the process undermining the FAA’s proarbitration purposes and breeding litigation from a statute that seeks to avoid it. The Court has been quite specific in holding that arbitration agreements can be enforced under the FAA without contravening the policies of congressional enactments giving employees specific protection against discrimination prohibited by federal law; as we noted in Gilmer, 500 U.S. at 26 [111 S.Ct. 1647], by agreeing to arbitrate a statutory claim, a party does not forgo the substantive rights afforded by the statute; it only submits to their resolution in an arbitral, rather than a judicial, forum. Circuit City Stores v. Adams, 532 U.S. 105, 122-23, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (citations and internal quotations omitted). Indeed, Title VII claims may be subjected to binding arbitration. See Willis v. Dean Witter Reynolds, Inc., 948 F.2d 305, 310 (6th Cir.1991); cf. Cosgrove v. Shearson Lehman Bros., No. 95-3432, 1997 WL 4783, at *2 (6th Cir. Jan.6, 1997) (same for ADEA claims); Bailey v. Ameriquest Mortgage Co., 346 F.3d 821, 822 (8th Cir.2003) (same for FLSA claims). The question before the court, then, is whether there are “grounds ... at law or in equity” for the revocation or non-enforcement of the agreement. See 9 U.S.C. § 2. C. Under Tennessee Law, the Arbitration Agreement was not a Contract of Adhesion 1. Tennessee Law on Contracts of Adhesion In Tennessee, “a contract is presumed to be made with reference to the law of the place where it was entered into unless it appears it was entered into in good faith with reference to the law of some other state.” Ohio Cas. Ins. Co. v." } ]

[ { "docid": "18551959", "title": "", "text": "no longer executory when a buyer was procured. Turning to the transactions at issue, the purchase and sale agreements for 165 Warren Road, 170 Warren Road, 9 Elliott Lane, and 2 Baptist Hill Road, were executed before the Filing Date. Since the buyers were procured before the Filing Date, the Broker’s commissions on these properties constitute prepetition general unsecured claims. With respect to 35 Gary Road, although the purchase and sale agreement was executed postpetition, the offer to purchase was tendered to the Debtor prepetition. As a result, the buyer was procured prepetition and the Broker’s claim for its commission on this property is also a general unsecured claim. Finally, the offer to purchase 244 Denver Street was tendered four (4) days after the Filing Date. The Broker contends that its claim for this commission is a postpe-tition claim because the buyer was procured after the Filing Date. The Committee disputes the timing of that procurement. Therefore, as is set forth in greater detail below, the Committee is entitled to an evi-dentiary hearing as to whether the buyer was procured prior to or after the Filing Date. B. Administrative Expense Priority Pursuant to § 503(b)(1)(A) for Post-petition Services Alternatively, the Broker argues that because it provided postpetition services which benefited the estate, it is entitled to some or all of the commissions as an administrative expense claim with priority under § 503(b)(1)(A). 11 U.S.C. § 507(a)(1) grants first priority status to “administrative expenses allowable under 503(b)....” Section 503(b), in turn, provides for the allowance of various expenses as administrative expenses including: (1)(A) The actual, necessary costs and expenses of preserving the estate, including wages, salaries, or commissions for services rendered after the commencement of the case.... The Broker argues that it is entitled to payment for postpetition services in two (2) different ways. First, the Broker asks the Court to award it payment for the services which it rendered to the estate after the Filing Date in safeguarding each of the six (6) sales. But the Debtor has failed to distinguish between (i) services which it ordinarily would have rendered" } ]

[ { "docid": "8986062", "title": "", "text": "(Bankr.M.D.Fla.1996)(“Presutti’s action in state court for the writ of garnishment was prepetition and therefore not reimbursable under § 503”); Sibarium v. Karp, Leonetti & Co. (In re New England Software, Inc.), 204 B.R. 334, 336 (Bankr.D.Conn.1996)(“Administrative expenses under 11 U.S.C. § 503 are payable only if they are subsequent to the filing of the debtor’s petition____ This is so because administrative expense claims are created by statute and not by the courts or on the basis of equitable grounds arising out of the conduct of the parties....”); In re Lunan Family Restaurants, 194 B.R. 429, 449 (Bankr.N.D.Ill.1996)(“If the commitments of the parties arose prepetition, there is no administrative expense payable from the bankruptcy estate.”); In re Hohenberg, 191 B.R. 694, 701 (Bankr.W.D.Tenn.1996)(“Moreover, Mr. Hohenberg’s transfer of the $350,000 was prepetition, and administrative expenses under § 503 concern postpetition expenses. By definition, the $350,000 transfer could not be an administrative expense.”); In re Mahoney-Troast Const. Co., 189 B.R. 57, 59 (Bankr.D.N.J.1995)(“Since Code section 503(b) concerns itself with expenses incurred in connection with the bankruptcy estate, the expense must be one which arises post-petition.”); In re Sunarhauserman, Inc., 184 B.R. 279, 281 (Bankr.N.D.Ohio 1995)(“In general, to qualify as an administrative expense the claim must not only arise postpetition but must bear an appropriate relation to the postpetition period as well.”); In re Florida West Gateway, Inc., 180 B.R. 299, 301 (Bankr.S.D.Fla.1995)(“Three (3) factors are determinative of administrative expense status under 11 U.S.C. §§ 503:(I) the claim must be derived from debt incurred post-petition. ...”); In re HSD Venture, 178 B.R. 831, 836 (Bankr.S.D.Cal.1995)(commissions due real estate brokers for prepetition efforts which resulted in contracts for sales of debtor-in-possession’s condominium units being obtained would not be allowed as administrative expenses pursuant to 503(b)(3)(D) where sales did not close until after bankruptcy petition was filed); In re First Technology Corp., 178 B.R. 530, 532 (Bankr.M.D.Fla.1995)(“To be considered an actual necessary cost or expense of preserving the estate the expense must ... arise post petition.”); In re Food Barn Stores, Inc., 175 B.R. 723, 726 (Bankr.W.D.Mo.1994)(“As a general rule, a request for priority payment of" }, { "docid": "8986080", "title": "", "text": "gas was used by the debtor-in-possession postpetition); In re Moltech Power Systems, Inc., 273 B.R. 268 (Bankr.N.D.Fla.2002)(denying administrative expense priority in Chapter 11 case to claim made by company employed by debtor prepetition to audit its utility bills and obtain refunds and future savings from utility companies, in exchange for a set percentage of such refunds or future savings, for agreed percentage of credit realized by debtor-in-possession as a result of company’s prepetition services even though credit was applied by utility company to debtor-in-possession’s account postpetition); In re Section 20 Land Group, Ltd., 261 B.R. 711 (Bankr.M.D.Fla.2000)(denying administrative expense priority in Chapter 11 case to fees and expenses incurred prepetition by prospective purchaser’s due diligence efforts in connection with prepetition contract entered into with debtor to purchase land even though discovery of title problems by prospective purchaser may have facilitated debtor-in-possession’s sale of the property and absent prospective purchaser abandonment of its equitable conversion claim debtor-in-possession may have been unable to obtain confirmation its plan); In re Russell Cave Co., Inc., 249 B.R. 145 (Bankr.E.D.Ky.2000)(creditor which supplied custom-made labels to debtor-in-possession postpetition pursuant to prepetition contract was not entitled to be paid for labels as administrative expense); In re Snowcrest Development Group, Inc., 200 B.R. 473 (Bankr.D.Mass.1996)(denying administrative expense priority in Chapter 11 case to commission sought by broker which procured purchase and sale agreements for certain real estate prepetition where sales did not close until after the debtor-in-possession filed its bankruptcy petition); Vanco Trading, Inc. v. Monheit (In re K Chemical Corp.), 188 B.R. 89 (Bankr.D.Conn.1995)(denying administrative expense priority in Chapter 11 case to supplier of chemical products for products delivered to debtor-in-possession several hours before petition was filed even though debtor-in-possession received payment from its customer from the resale of the chemicals postpe-tition), aff'd, No. 3:95CV02681 (EBB), 1999 WL 464531 (D. Conn. Jun 17, 1999); In re HSD Venture, 178 B.R. 831 (Bankr.S.D.Cal.1995)(commissions due real estate brokers for prepetition efforts which resulted in contracts for sales of debtor-in-possession’s condominium units being obtained would not be allowed as administrative expenses pursuant to 503(b)(3)(D) where sales did not close until" }, { "docid": "8986063", "title": "", "text": "expense must be one which arises post-petition.”); In re Sunarhauserman, Inc., 184 B.R. 279, 281 (Bankr.N.D.Ohio 1995)(“In general, to qualify as an administrative expense the claim must not only arise postpetition but must bear an appropriate relation to the postpetition period as well.”); In re Florida West Gateway, Inc., 180 B.R. 299, 301 (Bankr.S.D.Fla.1995)(“Three (3) factors are determinative of administrative expense status under 11 U.S.C. §§ 503:(I) the claim must be derived from debt incurred post-petition. ...”); In re HSD Venture, 178 B.R. 831, 836 (Bankr.S.D.Cal.1995)(commissions due real estate brokers for prepetition efforts which resulted in contracts for sales of debtor-in-possession’s condominium units being obtained would not be allowed as administrative expenses pursuant to 503(b)(3)(D) where sales did not close until after bankruptcy petition was filed); In re First Technology Corp., 178 B.R. 530, 532 (Bankr.M.D.Fla.1995)(“To be considered an actual necessary cost or expense of preserving the estate the expense must ... arise post petition.”); In re Food Barn Stores, Inc., 175 B.R. 723, 726 (Bankr.W.D.Mo.1994)(“As a general rule, a request for priority payment of an administrative expense pursuant to Bankruptcy Code § 503(a) may qualify if (1) the right to payment arose from a postpetition transaction with the debtor estate, rather than from a pre-petition transaction with the debtor, and (2) the consideration supporting the right to payment was beneficial to the estate of the debtor. Both criteria must be met to mandate allowance of an administrative expense priority claim.”); In re Piper Aircraft Corp., 169 B.R. 766, 776-777 (Bankr.S.D.Fla.1994)(“Either one has a right to treatment as an administrative expense, if the events giving rise to the claim involved postpetition conduct by the debtor-in-possession or one holds a ‘claim’ arising or deemed to arise before the filing of the petition, if the claim is tied to prepetition conduct of the debtor. There is no in between.... This is so because the concept of ‘claim’ is tied to a debtor’s prepetition conduct as distinct from an administrative expense which is tied to postpetition conduct.”); In re Williams, 165 B.R. 840, 841 (Bankr.M.D.Tenn.1993)(“Under § 503(b)(1)(A), two conditions must be met for" }, { "docid": "8986060", "title": "", "text": "claim to be qualified as an administrative expense, the claimant must prove that (a) it arises from a transaction entered into post-petition. ...”); In re Russell Cave Co., Inc., 249 B.R. 145, 147 (Bankr.E.D.Ky.2000)(“The benefit to the estate test limits administrative claims to those where the consideration for the claim was received during the post-petition period.”); In re Merry-Go-Round Enterprises, Inc., 241 B.R. 124, 129 (Bankr.D.Md.1999)(“For a claim to qualify as an actual and necessary administrative expense, ‘(1) the claim must arise out of post-petition transaction between the creditor and the debtor-in-possession (or trustee)....”’); In re Commercial Financial Services, Inc., 233 B.R. 885, 891 n. 4 (Bankr.N.D.Okla.1999)(“The benefit to the estate test limits administrative claims to those where consideration for the claim was received during the post-petition period.”), aff'd, 246 F.3d 1291 (10th Cir.2001); In re Mid-American Waste Systems, Inc., 228 B.R. 816, 821 (Bankr.D.Del.1999)(“To establish administrative priority under § 503(b)(1)(A), the O & D Claimants must demonstrate that the claimed expenses (I) arose out of a post-petition transaction with the debtor-in-possession and (ii) directly and substantially benefitted the estate.”); In re Heritage Leasing Corp., No. C/A 96-75946-W, 1998 WL 2016851, *2 (Bankr.D.S.C. Sept. 17, 1998)(“Generally, a claim for an administrative expense status will qualify under 11 U.S.C. § 503 if the right to payment arose from a postpetition transaction with the debtor estate rather than from a prepetition transaction with the debtor, and the conduct giving rise to the payment was beneficial to the estate of the debtor.”); In re Robinson, 225 B.R. 228, 232 (Bankr.N.D.Okla.1998)(“Under the two prong test the expense (1) must have arisen from a transaction with the estate, i.e., must be a post-petition transaction; and (2) the estate must have bene-fitted in some demonstrable way i.e., it must be necessary to preserve the estate.”); In re Westmoreland Coal Co., 213 B.R. 1, 17 (Bankr.D.Col.1997) (“Administrative expense priority under §§ 503(b)(1)(A) is reserved for obligations incurred during the course of the bankruptcy case which arise from the postpetition operation of a debtor’s business or administration of the bankruptcy case.”); In re Conty, 205 B.R. 329, 332" }, { "docid": "8986081", "title": "", "text": "which supplied custom-made labels to debtor-in-possession postpetition pursuant to prepetition contract was not entitled to be paid for labels as administrative expense); In re Snowcrest Development Group, Inc., 200 B.R. 473 (Bankr.D.Mass.1996)(denying administrative expense priority in Chapter 11 case to commission sought by broker which procured purchase and sale agreements for certain real estate prepetition where sales did not close until after the debtor-in-possession filed its bankruptcy petition); Vanco Trading, Inc. v. Monheit (In re K Chemical Corp.), 188 B.R. 89 (Bankr.D.Conn.1995)(denying administrative expense priority in Chapter 11 case to supplier of chemical products for products delivered to debtor-in-possession several hours before petition was filed even though debtor-in-possession received payment from its customer from the resale of the chemicals postpe-tition), aff'd, No. 3:95CV02681 (EBB), 1999 WL 464531 (D. Conn. Jun 17, 1999); In re HSD Venture, 178 B.R. 831 (Bankr.S.D.Cal.1995)(commissions due real estate brokers for prepetition efforts which resulted in contracts for sales of debtor-in-possession’s condominium units being obtained would not be allowed as administrative expenses pursuant to 503(b)(3)(D) where sales did not close until after bankruptcy petition was filed); In re 9 Stevens Cafe, Inc., 161 B.R. 96 (Bankr.S.D.N.Y.1993)(fees of attorney that represented prospective debtor in prepetition state court action which resulted in a $45,000 settlement and a $100,000 reduction in a mortgage on the debtor’s property could not be accorded administrative expense priority pursuant to 503(b)(3)(D) because attorney’s services were performed prepetition); In re Dynacircuits, L.P., 143 B.R. 174 (Bankr.N.D.Ill.1992)(salesman’s claim for commissions on orders placed pre-petition by customers obtained by salesman but not paid by customers until after petition was filed was not entitled to administrative expense priority even though debtor-in-possession derived postpetition benefit from salesman’s pre-petition efforts); In re Balport Const. Co., Inc., 123 B.R. 174 (Bankr.S.D.N.Y.1991)(consultant retained by debtor prepetition, and then postpetition pursuant to court order, to substantiate the debtor’s damages claim in continuing state court litigation was not entitled to be paid that portion of his fee generated as a result of services rendered prepetition as an administrative expense pursuant to 503(b)(3)(D) even though those services contributed to the debtor-in-possession’s negotiation of a" }, { "docid": "8986083", "title": "", "text": "substantial postpetition settlement); In re Philadelphia Mortgage Trust, 117 B.R. 820 (Bankr.E.D.Pa.1990)(Nonbank-ruptcy trustee of debtor real estate investment trust was not entitled to reimbursement of litigation expenses it incurred prepetition as administrative expense even though non-bankruptcy trustee’s prepetition actions resulted in a postpetition benefit being realized by the debtor-in-possession); Berliner Handels-Und Frankfurter Bank v. East Texas Steel Facilities, Inc. (In re East Texas Steel Facilities, Inc.), 117 B.R. 235 (Bankr.N.D.Tex.1990)(denying administrative expense priority in Chapter 11 case to postpetition extension of credit to debtor-in-possession by bank pursuant to prepetition letter of credit agreement); In re Precision Canvash Corp., 90 B.R. 34 (Bankr.E.D.N.Y.1988)(denying administrative expense priority in Chapter 11 case to commission sought by broker which acquired purchaser and contract of sale for debtor’s wash business and property prepetition even though sale was not consummated until after debtor-in-possession filed its bankruptcy petition); In re Nevins Ammunition, Inc., 79 B.R. 11 (Bankr.D.Idaho 1987)(creditor was not entitled to administrative expense for two shipments of brass shell casings received by debtor-in-possession prepetition even though casings were ostensibly used by the debtor-in-possession postpetition in the operation of its business); In re Roberts & Porter, Inc., 54 B.R. 251 (Bankr.Ill.1985)(employment agency was not entitled to administrative expense for commission due as a result of its referring employee to debtor-in-possession prepetition even though commission did not become due until after the Chapter 11 petition was filed and employee continued to perform valuable services for debtor-in-possession postpetition); In re The Charter Co., 52 B.R. 267 (Bankr.M.D.Fla.1985)(denying administrative expense priority in Chapter 11 case to commission sought by broker which acquired purchaser and contract of sale for debtor’s plant prepetition even though sale was not consummated until after debtor-in-possession filed its bankruptcy petition); In re John Clay and Co., Inc., 43 B.R. 797 (Bankr.D.Utah 1984)(denying administrative expense priority in Chapter 11 case to claims made by sheep producers for sheep delivered to debtor prepet-ition even though sheep were sold by debtor-in-possession postpetition); Brown v. Traders Nat'l Bank (In re Spears), 39 B.R. 91, 96 (Bankr.E.D.Tenn.1984)(feed company was not entitled to administrative expense claim for 23 tons of bulk feed" }, { "docid": "8986106", "title": "", "text": "fees incurred by a creditor whose prepetition efforts in filing and prosecuting writ of garnishment ultimately resulted in realization by estate of its sole asset); Sibarium v. Karp, Leonetti & Co. (In re New England Software, Inc.), 204 B.R. 334 (Bankr.D.Conn.1996)(denying administrative expense priority in Chapter 7 ease to accounting firm’s claim for services rendered in preparing debtor’s prepetition taxes); In re Olympic Marine Services, Inc., 186 B.R. 651 (Bankr.E.D.Va.1995)(denying administrative expense priority in Chapter 7 case to fees requested for services rendered prepetition by attorneys who represented the debtor pre-petition and the trustee postpetition in pursuing a lawsuit which was ultimately settled for $518,927.71); In re Williams, 165 B.R. 840 (Bankr.M.D.Tenn.1993)(denying administrative expense priority in Chapter 7 case to fees for prepetition services rendered by attorney who represented purchaser in bulk purchase transfer of debt- or’s business even though sales proceeds became part of the bankruptcy estate); In re I.D. Craig Service Corp., No. 89-00640, 1990 WL 53050 (Bankr.W.D.Pa. April 23, 1990)(denying administrative expense priority in Chapter 7 case to fees requested for services rendered prepetition by attorneys in class action which precipitated the debtor’s bankruptcy filing); Jones v. State Bank of Arthur (In re Jones), 98 B.R. 399 (Bankr.C.D.Ill.1988)(denying administrative expense priority in Chapter 7 case to commission claimed by real estate broker when broker acquired purchaser for property prepetition but sale did not close until after petition was filed); In re Moskovic, 77 B.R. 421 (Bankr.S.D.N.Y.1987)(denying administrative expense priority to the claim of a real estate broker in a Chapter 7 case even though the broker had obtained, prepetition, a purchaser for certain real estate owned by the debtor, as well as an executed contract for sale, and the sale closed postpetition, resulting in substantial benefit to the bankruptcy estate); In re Pierce, 53 B.R. 825 (Bankr.D.Minn.1985)(denying administrative expense priority in Chapter 7 case to fees requested for services rendered prepetition by attorneys for non-debtor third parties in connection with lawsuit which resulted in realization by estate of $45,878.00). Moreover, Antar and George, as well as Zedda, (another case cited by AmSouth), are in the minority to" }, { "docid": "8986104", "title": "", "text": "pled: To the extent that the Court desires to employ the nunc pro tunc authority exercised in the case of the retroactive retention of Burr & Forman, the Court could enter a nunc pro tunc order effectively bringing the Bank’s Adversary Proceeding within the provisions of § 503(b)(3)(B) since it was the Bank’s Adversary Proceeding that was settled by the Trustee. Id. at 2-3. AmSouth’s cites In re Antar, 122 B.R. 788 (Bankr.S.D.Fla.1990) and In re George, 23 B.R. 686 (Bankr.S.D.Fla.1982) to support that last contention. But, neither of those cases involved a request for compensation for prepetition services, or a request for reimbursement of prepetition expenses, or the allowance of administrative expense priority to either prepetition services or prepetition expenses. Therefore, neither would support the proposition that administrative expense priority may be accorded to professional fees and litigation expenses incurred by a creditor, whether through sections 503(b)(3)(B) and 503(b)(4), or for any other reason. The fact is, AmSouth has not cited any reported case in support of its application which has accorded administrative expense priority in a Chapter 7 case to professional fees and litigation expenses incurred by a creditor prepetition. The reason is probably because courts uniformly hold that administrative expense priority may not be accorded to a creditor’s prepetition fees and expenses in Chapter 7 cases. Some of those courts include: Xifaras v. Morad (In re Morad), 328 B.R. 264 (1st Cir. BAP 2005)(a£firming bankruptcy court’s denial in Chapter 7 case of administrative expense priority to attorneys fees and litigation costs incurred by a creditor in obtaining, prior to bankruptcy, a judgment setting aside fraudulent transfers of property made by the debtor to family members even though creditor’s efforts resulted in property becoming part of the debtor’s bankruptcy estate); In re Interstate Grocery Distributions System, Inc., 267 B.R. 907 (Bankr.D.N.J.2001)(denying administrative expense priority in Chapter 7 case to cost of improvements made prepetition to real property by prospective purchaser who had entered into prepetition contract to purchase real estate from debtor); In re Conty, 205 B.R. 329 (Bankr.M.D.Fla.1996)(denying administrative expense priority in Chapter 7 case to professional" }, { "docid": "8986105", "title": "", "text": "priority in a Chapter 7 case to professional fees and litigation expenses incurred by a creditor prepetition. The reason is probably because courts uniformly hold that administrative expense priority may not be accorded to a creditor’s prepetition fees and expenses in Chapter 7 cases. Some of those courts include: Xifaras v. Morad (In re Morad), 328 B.R. 264 (1st Cir. BAP 2005)(a£firming bankruptcy court’s denial in Chapter 7 case of administrative expense priority to attorneys fees and litigation costs incurred by a creditor in obtaining, prior to bankruptcy, a judgment setting aside fraudulent transfers of property made by the debtor to family members even though creditor’s efforts resulted in property becoming part of the debtor’s bankruptcy estate); In re Interstate Grocery Distributions System, Inc., 267 B.R. 907 (Bankr.D.N.J.2001)(denying administrative expense priority in Chapter 7 case to cost of improvements made prepetition to real property by prospective purchaser who had entered into prepetition contract to purchase real estate from debtor); In re Conty, 205 B.R. 329 (Bankr.M.D.Fla.1996)(denying administrative expense priority in Chapter 7 case to professional fees incurred by a creditor whose prepetition efforts in filing and prosecuting writ of garnishment ultimately resulted in realization by estate of its sole asset); Sibarium v. Karp, Leonetti & Co. (In re New England Software, Inc.), 204 B.R. 334 (Bankr.D.Conn.1996)(denying administrative expense priority in Chapter 7 ease to accounting firm’s claim for services rendered in preparing debtor’s prepetition taxes); In re Olympic Marine Services, Inc., 186 B.R. 651 (Bankr.E.D.Va.1995)(denying administrative expense priority in Chapter 7 case to fees requested for services rendered prepetition by attorneys who represented the debtor pre-petition and the trustee postpetition in pursuing a lawsuit which was ultimately settled for $518,927.71); In re Williams, 165 B.R. 840 (Bankr.M.D.Tenn.1993)(denying administrative expense priority in Chapter 7 case to fees for prepetition services rendered by attorney who represented purchaser in bulk purchase transfer of debt- or’s business even though sales proceeds became part of the bankruptcy estate); In re I.D. Craig Service Corp., No. 89-00640, 1990 WL 53050 (Bankr.W.D.Pa. April 23, 1990)(denying administrative expense priority in Chapter 7 case to fees requested for services" }, { "docid": "8986084", "title": "", "text": "the debtor-in-possession postpetition in the operation of its business); In re Roberts & Porter, Inc., 54 B.R. 251 (Bankr.Ill.1985)(employment agency was not entitled to administrative expense for commission due as a result of its referring employee to debtor-in-possession prepetition even though commission did not become due until after the Chapter 11 petition was filed and employee continued to perform valuable services for debtor-in-possession postpetition); In re The Charter Co., 52 B.R. 267 (Bankr.M.D.Fla.1985)(denying administrative expense priority in Chapter 11 case to commission sought by broker which acquired purchaser and contract of sale for debtor’s plant prepetition even though sale was not consummated until after debtor-in-possession filed its bankruptcy petition); In re John Clay and Co., Inc., 43 B.R. 797 (Bankr.D.Utah 1984)(denying administrative expense priority in Chapter 11 case to claims made by sheep producers for sheep delivered to debtor prepet-ition even though sheep were sold by debtor-in-possession postpetition); Brown v. Traders Nat'l Bank (In re Spears), 39 B.R. 91, 96 (Bankr.E.D.Tenn.1984)(feed company was not entitled to administrative expense claim for 23 tons of bulk feed sold and delivered to debtor-in-possession farmer before bankruptcy even though the feed was used by the debtor-in-possession postpetition); Benn v. Halyard Realty Trust (In re Halyard Realty Trust), 37 B.R. 260 (Bankr.D.Mass.1983)(commission earned by real estate agent prepetition as a result of his acquiring purchaser for property owned by debtor-in-possession was not compensable as administrative expense even though sale brokered by agent closed postpetition); Bojalad & Co. v. Holiday Meat Packing Inc. (In re Holiday Meat Packing Inc.), 30 B.R. 737 (Bankr.W.D.Pa.1983)(creditor was not entitled to administrative expense claim for $27,450 sale price of beef that it delivered to the debtor-in-possession for use in the continuation of its business two-and-a-half hours the filing of its Chapter 11 petition); In re Baths Intern., Inc., 25 B.R. 538 (Bankr.S.D.N.Y.1982)(advertising agency was not entitled to administrative expense for fees for placing advertisements in directories for debtor prepetition even though advertisements were not published until after the debtor-in-possession filed its bankruptcy petition); In re World Fashions, Inc., 24 B.R. 452 (Bankr.N.D.Ga.1982)(creditor which delivered merchandise to debtor-in-possession three days before" }, { "docid": "8986047", "title": "", "text": "post-petition claims, given priority in asset distribution over most other claims against the bankruptcy estate.”); In re Roth American, Inc., 975 F.2d 949, 958 (3rd Cir.1992)(union’s claims for vacation pay and severance pay were properly accorded first priority as administrative expenses only to the extent that those benefits were earned by services rendered post-petition); Woburn Associates v. Kahn (In re Hemingway Transport, Inc.), 954 F.2d 1, 5 (1st Cir.1992)(“[A] request for priority payment of an administrative expense pursuant to Bankruptcy Code § 503(a) may qualify if (1) the right to payment arose from a postpetition transaction with the debtor estate, rather than from a prepetition transaction with the debt- or----”); Trustee of the Amalgamated Ins. Fund v. McFarlin’s Inc., 789 F.2d 98, 101 (2nd Cir.1986)(“Accordingly, an expense is administrative only if it arises out of a transaction between the creditor and the bankrupt’s trustee or debtor in possession .... ”); Tidewater Finance Co. v. Henson, 272 B.R. 135, 139 (D.Md.2001)(“A prepetition creditor, by virtue of having transacted with a debtor before he or she files for bankruptcy, ordinarily fails the first prong of the administrative expense test (requiring a postpetition transaction between the creditor and the estate).”), aff'd, 57 Fed.Appx. 136, No. 02-1126, 2003 WL 122503 (4th Cir. Jan. 15, 2003); Lasky v. Phones For All, Inc. (In re Phones For All, Inc.), 262 B.R. 914, 918 (N.D.Tex.2001)(“Accordingly, an expense is entitled to administrative priority treatment only if (1) it results from a transaction between the claimant and the trustee of the bankruptcy estate or a debtor in possession; and (2) the benefit to the debtor, and hence the right to payment, accrues post-petition.”), aff'd, 288 F.3d 730 (5th Cir.2002); Kucin v. Devan, 251 B.R. 269, 271 (D.Md.2000)(“Generally, in order to qualify as a § 503 administrative expense, ‘(1) the claim must arise out of a post-petition transaction between the creditor and the debtor-in-possession (or trustee).... ’ ”); Vanco Trading, Inc. v. Monheit, No. 3:95CV02681 (EBB), 1999 WL 464531, *4 (D.Conn. June 17, 1999)(“The result of which is the determination that Vanco’s October 29, 1992 delivery of the Chemicals to" }, { "docid": "8986085", "title": "", "text": "sold and delivered to debtor-in-possession farmer before bankruptcy even though the feed was used by the debtor-in-possession postpetition); Benn v. Halyard Realty Trust (In re Halyard Realty Trust), 37 B.R. 260 (Bankr.D.Mass.1983)(commission earned by real estate agent prepetition as a result of his acquiring purchaser for property owned by debtor-in-possession was not compensable as administrative expense even though sale brokered by agent closed postpetition); Bojalad & Co. v. Holiday Meat Packing Inc. (In re Holiday Meat Packing Inc.), 30 B.R. 737 (Bankr.W.D.Pa.1983)(creditor was not entitled to administrative expense claim for $27,450 sale price of beef that it delivered to the debtor-in-possession for use in the continuation of its business two-and-a-half hours the filing of its Chapter 11 petition); In re Baths Intern., Inc., 25 B.R. 538 (Bankr.S.D.N.Y.1982)(advertising agency was not entitled to administrative expense for fees for placing advertisements in directories for debtor prepetition even though advertisements were not published until after the debtor-in-possession filed its bankruptcy petition); In re World Fashions, Inc., 24 B.R. 452 (Bankr.N.D.Ga.1982)(creditor which delivered merchandise to debtor-in-possession three days before the Chapter 11 petition was filed was not entitled to administrative expense for purchase price of merchandise even though merchandise was ostensibly used by debtor-in-possession in operation of its business). These decisions were reached in Chapter 11 cases. Not only do they not support AmSouth’s general propositions that pre-petition fees and costs may be accorded administrative expense priority, they were based on section 503(b)(3)(D), a specific statutory authorization explicitly limited to “substantial contributions” made in Chapter 11 cases. As the discussion below explains, that doctrine is not available in Chapter 7 cases. Therefore, the above cases do not support either the general proposition advanced by AmSouth or its contention that a creditor’s prepetition professional fees and costs incurred in making a “substantial contribution” in a Chapter 7 case may be accorded administrative expense priority, “either as a non-listed ‘actual, necessary’ expense of preserving the estate under 503(b)(1)(A) or as a nonlisted administrative expense under 503(b) in general,” N.P. Mining Co., 963 F.2d at 1452. Id. First, as cited above, the Court of Appeals for the" }, { "docid": "8986048", "title": "", "text": "for bankruptcy, ordinarily fails the first prong of the administrative expense test (requiring a postpetition transaction between the creditor and the estate).”), aff'd, 57 Fed.Appx. 136, No. 02-1126, 2003 WL 122503 (4th Cir. Jan. 15, 2003); Lasky v. Phones For All, Inc. (In re Phones For All, Inc.), 262 B.R. 914, 918 (N.D.Tex.2001)(“Accordingly, an expense is entitled to administrative priority treatment only if (1) it results from a transaction between the claimant and the trustee of the bankruptcy estate or a debtor in possession; and (2) the benefit to the debtor, and hence the right to payment, accrues post-petition.”), aff'd, 288 F.3d 730 (5th Cir.2002); Kucin v. Devan, 251 B.R. 269, 271 (D.Md.2000)(“Generally, in order to qualify as a § 503 administrative expense, ‘(1) the claim must arise out of a post-petition transaction between the creditor and the debtor-in-possession (or trustee).... ’ ”); Vanco Trading, Inc. v. Monheit, No. 3:95CV02681 (EBB), 1999 WL 464531, *4 (D.Conn. June 17, 1999)(“The result of which is the determination that Vanco’s October 29, 1992 delivery of the Chemicals to K Chemical Corp., occurred prior in time to the filing of the Debtor’s petition at 4:05 p.m., making Vanco’s transaction pre-petition. Therefore, Vaneo is not entitled to an administrative expense priority claim.”); Lastra v. Estevez (In re Bay Broadcasting, Inc.), 182 B.R. 369, 374 (D.P.R.1995)(“[T]he requirement that for an expense to qualify as an administrative expense ... mandates that the expense be incurred after there is a debtor in possession and not when there is a pre-petition debtor.”); Fireman’s Fund Ins. Co. v. Wheeling-Pittsburgh Steel Corp. (In re Wheeling-Pittsburgh Steel Corp.), 67 B.R. 620, 623 (W.D.Pa.1986)(“It is clear to this court that the claims in question do not qualify for administrative expense priority under Section 503(b)(1)(A) because these were not necessary for the preservation of the bankrupt estate and they do not result from a postpetition transaction.”); Employee Transfer Corp. v. Grigsby (In re White Motor Corp.), 64 B.R. 586, 592 (N.D.Ohio 1986)(“This Court is called upon to determine whether ETC’s post-petition expenditures on pre-petition houses are attributable to the pre-filing or post-filing period. If" }, { "docid": "8986077", "title": "", "text": "are on point. All involve Chapter 11 cases, which this one is not. In addition, all were decided under section 503(b)(3)(D), which, aside from not being applicable to Chapter 7 cases, is not the statute upon which AmSouth’s has based its administrative expense request. Moreover, any persuasive support that section 503(b)(3)(D) cases might lend is eroded because the prepetition fees and expenses that were allowed as administrative expenses, in addition to Trans World, were allowed in only four of the above. Those are Lebrón and Mechem Financial, (which are the same case), and Russell Transfer, and Med General. Furthermore, quite a number of other courts have reached the opposite result in substantially similar circumstances, both under section 503(b)(3)(D) and section 503(b)(1)(A). Those courts held in circumstances where a creditor renders services, or incurs expenses, or provides goods to a Chapter 11 debtor-in-possession prepetition, that the creditor was not entitled to an administrative expense priority even if those services, expenses, or products resulted in a postpetition benefit to the debt- or-in-possession. Examples include: In re Jartran, Inc., 732 F.2d 584 (7th Cir.1984)(advertising agency which, pre-petition, placed debtor-in-possession’s orders for classified advertisements in Yellow Pages with an advertising company, and advertising company which in turn, arranged prepetition to have debt- or-in-possession’s ads to appear in Yellow Page directories nationwide, were not allowed administrative expense claims for the cost of the advertising even though the advertising was not published until after the debtor-in-possession filed its Chapter 11 petition and there was no question that the appearance of the ads in Yellow Page directories throughout the country was beneficial to the debtor-in-possession in the operation of its business); Vanco Trading, Inc. v. Monheit, No. 3:95CV02681 (EBB), 1999 WL 464531 (D.Conn. June 17, 1999)(supplier of chemical products was not entitled to administrative expense for products delivered to debtor-in-possession several hours before petition was filed even though debtor-in-possession received payment from its customer from the resale of the chemicals postpetition); In re Baths Intern., Inc., 31 B.R. 143 (S.D.N.Y.1983)(affirming denial by bankruptcy court of administrative expense priority in Chapter 11 case to fees claimed by advertising" }, { "docid": "8986059", "title": "", "text": "claims.”); In re D.M. Kaye & Sons Transport, Inc., 259 B.R. 114, 120 (Bankr.D.S.C.2001)(‘If the commitments of the parties arose prepetition, there is no administrative expense payable from the bankruptcy estate.”); In re Section 20 Land Group, Ltd., 261 B.R. 711, 715 (Bankr.M.D.Fla.2000)(“To establish entitlement to an administrative expense claim, claimant must show that the claim arose from a post-petition transaction and that the transaction actually benefited the estate.”); In re Nationwise Automotive, Inc., 250 B.R. 900, 903 (Bankr.S.D.Ohio 2000)(“It is an absolute requirement for administrative expense priority that the liability at issue arise post-petition.”); In re Hepworth, No. 99-41514, 2000 WL 33712220, *2 (Bankr.D.Idaho May 30, 2000)(“Courts from other jurisdictions have found that even hours or minutes are important in determining whether a debt was incurred pre — or postpetition .... Because the Creditors’ loan of the $12,400 to Debtors occurred before the bankruptcy case was commenced, Creditors’ claim is not entitled to administrative expense priority.”); In re Southern Soya Corp., 251 B.R. 302, 308 (Bankr.D.S.C.2000)(“The general rule is that, in order for a claim to be qualified as an administrative expense, the claimant must prove that (a) it arises from a transaction entered into post-petition. ...”); In re Russell Cave Co., Inc., 249 B.R. 145, 147 (Bankr.E.D.Ky.2000)(“The benefit to the estate test limits administrative claims to those where the consideration for the claim was received during the post-petition period.”); In re Merry-Go-Round Enterprises, Inc., 241 B.R. 124, 129 (Bankr.D.Md.1999)(“For a claim to qualify as an actual and necessary administrative expense, ‘(1) the claim must arise out of post-petition transaction between the creditor and the debtor-in-possession (or trustee)....”’); In re Commercial Financial Services, Inc., 233 B.R. 885, 891 n. 4 (Bankr.N.D.Okla.1999)(“The benefit to the estate test limits administrative claims to those where consideration for the claim was received during the post-petition period.”), aff'd, 246 F.3d 1291 (10th Cir.2001); In re Mid-American Waste Systems, Inc., 228 B.R. 816, 821 (Bankr.D.Del.1999)(“To establish administrative priority under § 503(b)(1)(A), the O & D Claimants must demonstrate that the claimed expenses (I) arose out of a post-petition transaction with the debtor-in-possession and (ii) directly" }, { "docid": "8986079", "title": "", "text": "agency for placing advertisements in directories for debtor prepetition even though advertisements were not published until after the debtor-in-possession filed its bankruptcy petition); In re Southwest Florida Heart Group, P.A., 343 B.R. 332 (Bankr.M.D.Fla.2006)(eompany that Chapter 11 debtor retained prepetition to collect its accounts receivable after ceasing operations, and postpetition, with court approval, for same purpose, could not recover, as administrative expense, compensation for any collection services that it rendered prepetition, even though those prepetition services resulted in the debtor-in-possession’s receipt of $935,000 in the month immediately following the date bankruptcy case was filed); In re WorldCom, Inc., 308 B.R. 157 (Bankr.S.D.N.Y.2004)(commissions to which debtor-in-possession’s sales agent became entitled as a result of payments made to debtor-in-possession postpetition by customers which the agent had secured prepetition were not payable as administrative expenses even though the postpetition payments made by said customers were of substantial benefit to the debtor-in-possession); In re Pittsburgh-Canfield Corp., 283 B.R. 231 (Bankr.N.D.Ohio.2002)(company that supplied natural gas to debtor-in-possession prepetition was not allowed administrative expense claim for the same even though the gas was used by the debtor-in-possession postpetition); In re Moltech Power Systems, Inc., 273 B.R. 268 (Bankr.N.D.Fla.2002)(denying administrative expense priority in Chapter 11 case to claim made by company employed by debtor prepetition to audit its utility bills and obtain refunds and future savings from utility companies, in exchange for a set percentage of such refunds or future savings, for agreed percentage of credit realized by debtor-in-possession as a result of company’s prepetition services even though credit was applied by utility company to debtor-in-possession’s account postpetition); In re Section 20 Land Group, Ltd., 261 B.R. 711 (Bankr.M.D.Fla.2000)(denying administrative expense priority in Chapter 11 case to fees and expenses incurred prepetition by prospective purchaser’s due diligence efforts in connection with prepetition contract entered into with debtor to purchase land even though discovery of title problems by prospective purchaser may have facilitated debtor-in-possession’s sale of the property and absent prospective purchaser abandonment of its equitable conversion claim debtor-in-possession may have been unable to obtain confirmation its plan); In re Russell Cave Co., Inc., 249 B.R. 145 (Bankr.E.D.Ky.2000)(creditor" }, { "docid": "8986078", "title": "", "text": "Inc., 732 F.2d 584 (7th Cir.1984)(advertising agency which, pre-petition, placed debtor-in-possession’s orders for classified advertisements in Yellow Pages with an advertising company, and advertising company which in turn, arranged prepetition to have debt- or-in-possession’s ads to appear in Yellow Page directories nationwide, were not allowed administrative expense claims for the cost of the advertising even though the advertising was not published until after the debtor-in-possession filed its Chapter 11 petition and there was no question that the appearance of the ads in Yellow Page directories throughout the country was beneficial to the debtor-in-possession in the operation of its business); Vanco Trading, Inc. v. Monheit, No. 3:95CV02681 (EBB), 1999 WL 464531 (D.Conn. June 17, 1999)(supplier of chemical products was not entitled to administrative expense for products delivered to debtor-in-possession several hours before petition was filed even though debtor-in-possession received payment from its customer from the resale of the chemicals postpetition); In re Baths Intern., Inc., 31 B.R. 143 (S.D.N.Y.1983)(affirming denial by bankruptcy court of administrative expense priority in Chapter 11 case to fees claimed by advertising agency for placing advertisements in directories for debtor prepetition even though advertisements were not published until after the debtor-in-possession filed its bankruptcy petition); In re Southwest Florida Heart Group, P.A., 343 B.R. 332 (Bankr.M.D.Fla.2006)(eompany that Chapter 11 debtor retained prepetition to collect its accounts receivable after ceasing operations, and postpetition, with court approval, for same purpose, could not recover, as administrative expense, compensation for any collection services that it rendered prepetition, even though those prepetition services resulted in the debtor-in-possession’s receipt of $935,000 in the month immediately following the date bankruptcy case was filed); In re WorldCom, Inc., 308 B.R. 157 (Bankr.S.D.N.Y.2004)(commissions to which debtor-in-possession’s sales agent became entitled as a result of payments made to debtor-in-possession postpetition by customers which the agent had secured prepetition were not payable as administrative expenses even though the postpetition payments made by said customers were of substantial benefit to the debtor-in-possession); In re Pittsburgh-Canfield Corp., 283 B.R. 231 (Bankr.N.D.Ohio.2002)(company that supplied natural gas to debtor-in-possession prepetition was not allowed administrative expense claim for the same even though the" }, { "docid": "8986082", "title": "", "text": "after bankruptcy petition was filed); In re 9 Stevens Cafe, Inc., 161 B.R. 96 (Bankr.S.D.N.Y.1993)(fees of attorney that represented prospective debtor in prepetition state court action which resulted in a $45,000 settlement and a $100,000 reduction in a mortgage on the debtor’s property could not be accorded administrative expense priority pursuant to 503(b)(3)(D) because attorney’s services were performed prepetition); In re Dynacircuits, L.P., 143 B.R. 174 (Bankr.N.D.Ill.1992)(salesman’s claim for commissions on orders placed pre-petition by customers obtained by salesman but not paid by customers until after petition was filed was not entitled to administrative expense priority even though debtor-in-possession derived postpetition benefit from salesman’s pre-petition efforts); In re Balport Const. Co., Inc., 123 B.R. 174 (Bankr.S.D.N.Y.1991)(consultant retained by debtor prepetition, and then postpetition pursuant to court order, to substantiate the debtor’s damages claim in continuing state court litigation was not entitled to be paid that portion of his fee generated as a result of services rendered prepetition as an administrative expense pursuant to 503(b)(3)(D) even though those services contributed to the debtor-in-possession’s negotiation of a substantial postpetition settlement); In re Philadelphia Mortgage Trust, 117 B.R. 820 (Bankr.E.D.Pa.1990)(Nonbank-ruptcy trustee of debtor real estate investment trust was not entitled to reimbursement of litigation expenses it incurred prepetition as administrative expense even though non-bankruptcy trustee’s prepetition actions resulted in a postpetition benefit being realized by the debtor-in-possession); Berliner Handels-Und Frankfurter Bank v. East Texas Steel Facilities, Inc. (In re East Texas Steel Facilities, Inc.), 117 B.R. 235 (Bankr.N.D.Tex.1990)(denying administrative expense priority in Chapter 11 case to postpetition extension of credit to debtor-in-possession by bank pursuant to prepetition letter of credit agreement); In re Precision Canvash Corp., 90 B.R. 34 (Bankr.E.D.N.Y.1988)(denying administrative expense priority in Chapter 11 case to commission sought by broker which acquired purchaser and contract of sale for debtor’s wash business and property prepetition even though sale was not consummated until after debtor-in-possession filed its bankruptcy petition); In re Nevins Ammunition, Inc., 79 B.R. 11 (Bankr.D.Idaho 1987)(creditor was not entitled to administrative expense for two shipments of brass shell casings received by debtor-in-possession prepetition even though casings were ostensibly used by" }, { "docid": "8986107", "title": "", "text": "rendered prepetition by attorneys in class action which precipitated the debtor’s bankruptcy filing); Jones v. State Bank of Arthur (In re Jones), 98 B.R. 399 (Bankr.C.D.Ill.1988)(denying administrative expense priority in Chapter 7 case to commission claimed by real estate broker when broker acquired purchaser for property prepetition but sale did not close until after petition was filed); In re Moskovic, 77 B.R. 421 (Bankr.S.D.N.Y.1987)(denying administrative expense priority to the claim of a real estate broker in a Chapter 7 case even though the broker had obtained, prepetition, a purchaser for certain real estate owned by the debtor, as well as an executed contract for sale, and the sale closed postpetition, resulting in substantial benefit to the bankruptcy estate); In re Pierce, 53 B.R. 825 (Bankr.D.Minn.1985)(denying administrative expense priority in Chapter 7 case to fees requested for services rendered prepetition by attorneys for non-debtor third parties in connection with lawsuit which resulted in realization by estate of $45,878.00). Moreover, Antar and George, as well as Zedda, (another case cited by AmSouth), are in the minority to the extent that they purport to permit nunc pro tunc authorization under 503(b)(3)(B). The majority of courts considering that issue and reporting decisions have determined that the prerequisite authorization needed to satisfy 503(b)(3)(B) may not be supplied nunc pro tunc because that operation would denigrate, and render meaningless, the statute’s explicit requirement that prior approval of the court should be obtained before a creditor engages in any efforts to recover property transferred by the debtor. In re Gimelson, No. 04-3216, 00-11773F, 2004 WL 2713059, *21 (E.D.Pa. Nov. 23, 2004); In re Elder, 321 B.R. 820, 829 (Bankr.E.D.Va.2005); In re Central Idaho Forest Products, 317 B.R. 150, 157 (Bankr.D.Idaho 2004); Sanner v. Poli (In re Poli), 298 B.R. 557, 568-569 (Bankr.E.D.Va.2003); In re Lagasse, 228 B.R. 223, 225 (Bankr.E.D.Ark.1998); In re Conty, 205 B.R. 329, 331-332 (Bankr.M.D.Fla.1996); In re Fall, 93 B.R. 1003, 1012 (Bankr.D.Or.1988); In re Monahan, 73 B.R. 543, 544 (Bankr.S.D.Fla.1987); In re Romano, 52 B.R. 590, 593 (Bankr.M.D.Fla.1985); In re Spencer, 35 B.R. 280, 281-282 (Bankr.N.D.Ga.1983); Lazar v. Casale (In re Casale), 27" }, { "docid": "8986068", "title": "", "text": "case and which constituted a ‘substantial contribution’ to the Chapter 11 case, are eligible for reimbursement on an administrative priority basis.”); In re I.D. Craig Service Corp., No. 89-00640, 1990 WL 53050, *1 (Bankr.W.D.Pa. Apr. 23, 1990)(“At the hearing on April 4, 1990, the court granted petitioner Eric F. Solomon leave to file, by April 11, 1990, a brief citing authority to support his position that a prepetition claim for fees for attorney’s services constituted an allowable administrative expense under § 503(b). No brief was filed. In view of the express statutory language that administrative expenses are only those for services rendered postpetition, the motion will be denied.”); In re Michigan General Corp., 102 B.R. 554, 557 (Bankr.N.D.Tex.1988)(“[P]re-petition expenses are, by definition, not administrative expenses.”); In re Washington Mfg. Co., 101 B.R. 944, 958 (Bankr.M.D.Tenn.1989)(“[T]o the extent that its claim is for prepetition services contracted by the prepetition debtors, it does not qualify as an administrative expense claim pursuant to § 503(b)(1)(A).”); In re Precision Carwash Corp., 90 B.R. 34, 38 (Bankr.E.D.N.Y.1988)(“If the creditor’s services have been fully performed pre-petition and all that remains is the payment of money, the debtor cannot give the debt administrative status....”); In re Jeurissen, 85 B.R. 531, 535 (Bankr.D.Minn.1988)(“Only those obligations of a debtor that arise post-petition are entitled to treatment as administrative expenses.”); In re Nevins Ammunition, Inc., 79 B.R. 11, 13 (Bankr.D.Idaho 1987)(“Obviously, only those transactions which occur post-petition can be considered for priority administrative expense.”); In re Moskovic, 77 B.R. 421, 423 (Bankr.S.D.N.Y.1987)(“The real estate broker is a prepetition creditor holding a general unsecured claim against this estate and does not have an administration expense priority claim which would justify the brokerage commissions being paid directly from the proceeds of the sale.”); In re Keegan Utility Contractors, Inc., 70 B.R. 87, 89 (Bankr.W.D.N.Y.1987)(“Ultimately, administrative expense status should be granted only to claims representing post-petition debts incurred by the debt- or to preserve the estate.”); In re R & B Institutional Sales, Inc., 65 B.R. 876, 883 (Bankr.W.D.Pa.1986)(“As counsel was hired to bring a benefit to the estate, and as the estate" } ]

[ { "docid": "22595993", "title": "", "text": "1026 (6th Cir.1985)). In this ease, the record contains ample evidence that Pierce participated in the plan, and solicited Tackett to commit the arson. Therefore, the district court’s decision to deny Pierce a new ti’ial was not a clear and manifest abuse of discretion, but instead was supported by the evidence. III. Pierce’s Issues A. Motion for Acquittal Pierce argues that the district court should have granted his motion for judgment of acquittal. We review de novo a trial court’s refusal to grant a motion to acquit. United States v. Gibson, 896 F.2d 206, 209 (6th Cir.1990). “The standard is whether the government had introduced evidence sufficient for any rational trier of fact to convict, viewing the evidence and all reasonable inferences in the light most favorable to the government.” Id. (citing United States v. Gibson, 675 F.2d 825, 829 (6th Cir.), cert. denied, 459 U.S. 972, 103 S.Ct. 305, 74 L.Ed.2d 285 (1982)). As discussed supra, the jury had sufficient evidence to return a guilty verdict. Therefore, the district court did not err in finding the government met this standard. B. Statements of Co-Conspirators Pierce argues that the district court improperly admitted out-of-court statements made by Tackett. In particular, Pierce claims the district court should not have admitted Tackett’s statements that (1) Tackett stole a car in order to do a favor for Pierce, (2) he had to burn a church for Pierce and (3) he burned the Church as a favor to Pierce. The district court admitted the statements as non-hearsay under Federal Rule of Evidence 801(d)(2)(E). Rule 801(d)(2)(E) provides that “[a] statement is not hearsay if ... [t]he statement is offered against a party and is ... (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” Fed.R.Evid. 801(d)(2)(E). In order to admit a statement of a co-conspirator the government must establish (1) that a conspiracy existed, (2) that the defendant was a member of the conspiracy and (3) that the co-conspirator’s statements were made in furtherance of the conspiracy. United States v. Clark, 18 F.3d 1337, 1341 (6th" } ]

[ { "docid": "20020763", "title": "", "text": "The district court therefore correctly denied Vassar’s motion to dismiss Count 1. B. Sufficiency of the Evidence Next, Vassar argues that the evidence does not suffice to sustain his conviction for conspiracy to distribute cocaine. This challenge fails if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To prove a conspiracy under 21 U.S.C. § 846, the government must demonstrate “(1) an agreement to violate drug laws ...; (2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy.” United States v. Martinez, 430 F.3d 317, 330 (6th Cir.2005). The agreement need not be formal; a “tacit or material understanding among the parties” is enough. Id. (quoting United States v. Avery, 128 F.3d 966, 970-71 (6th Cir.1997) (internal quotation marks and citation omitted)). Numerous witnesses testified to Vassar’s participation in the conspiracy. Stacy Lynn Phillips and Dewey Lynn Phillips said that they sold multiple-kilogram quantities of cocaine to Vassar from 2003 through the summer of 2005. According to Stacy Phillips, up until late summer or early fall 2003, Vassar bought a kilogram of cocaine from him every few weeks and claimed to be reselling it. Dewey Phillips testified that between January 2004 and mid-summer 2005, he sold Vassar an average of one kilogram per month, and that Michael Gunter told Dewey that he bought cocaine from Vassar. Daniel Rice stated that he purchased over two kilograms of cocaine, partially for resale, from Vassar between May 2004 and January 2005. Melissa Thomas witnessed Vassar distributing what appeared to be cocaine at a local bar. Finally, Rick Fann testified that Vassar sold him cocaine beginning in early 2005. The evidence sufficiently supports Vassar’s conspiracy conviction. Despite all this testimony, Vassar urges us to vacate his conspiracy conviction because the jury “most likely” based its finding of guilt on the recorded sale of 6.61 grams of cocaine to Fann, who was cooperating with the" }, { "docid": "20020786", "title": "", "text": "simple possession also does not constitute a lesser-included offense of conspiracy to distribute and possess with intent to distribute cocaine. See id. at 376. Thus, Vassar’s claim lacks merit. We conclude that the district court did not abuse its discretion in instructing the jury. III. Vassar’s Sentence A. Relying on Acquitted Conduct at Sentencing Vassar disputes the district court’s decision to find a fact that differed from a jury-found fact. Specifically, the district court found that he “was involved in the distribution or conspiracy to distribute between 3.5 to 5 kilos of cocaine,” while the jury found Vassar not guilty of conspiring to distribute more than 500 grams. According to Vassar, this amounted to sentencing him “for an incorrect conspiracy offense of conviction” in violation of both the Sixth Amendment and the principles of issue preclusion. Appellant’s Br. at 65-68. We disagree. As for his Sixth Amendment jury-trial right challenge, Vassar fundamentally misunderstands the meaning of a jury’s acquittal. An acquittal is not a finding of innocence, but merely a negative statement that the evidence fell short of purging the jury’s reasonable doubts and therefore could not sustain a conviction. United States v. White, 551 F.3d 381, 385 (6th Cir.2008) (en banc). For Sixth Amendment purposes, this is the important point: The jury found Vassar guilty of conspiring to distribute less than 500 grams of cocaine, and that verdict alone exposed Vassar to a maximum sentence of 30 years’ imprisonment. 21 U.S.C. §§ 841(a)(1) & 846. Although the district court, in selecting a sentence within the range authorized by the statute of conviction, not only relied on acquitted conduct but also used a preponderance standard, this does not run afoul of the Sixth Amendment. The district court neither sentenced Vassar for acquitted conduct nor imposed its sentence under an incorrect statute of conviction. See White, 551 F.3d at 385. Thus, Vassar’s Sixth Amendment challenge fails. Vassar is correct that sentencing courts “cannot rely on a finding that directly conflicts with the jury’s verdict.” United States v. Cockett, 330 F.3d 706, 711 (6th Cir.2003). But here, given the differing standards of" }, { "docid": "20020759", "title": "", "text": "COOK, Circuit Judge. A jury convicted Michael Vassar of conspiring to distribute and to possess with the intent to distribute less than five hundred grams of cocaine, in violation of 21 U.S.C. § 846, 841(a)(1), and 841(b)(1)(A), and of distributing cocaine, in violation of 21 U.S.C. §§ 841(a)(1) and 841(b)(1)(C). Vassar appeals his conviction and sentence. For the reasons that follow, we affirm. I. Background Vassar was arrested in August 2005 after investigators recorded him selling 6.61 grams of cocaine to Rick Fann, an associate of Vassar’s who had agreed to cooperate with authorities. A grand jury indicted Vassar for distributing cocaine (Count 3), and — along with Dewey Lynn Phillips, James Mark Thornton, and Michael Charles Gunter — for conspiring to distribute and to possess with the intent to distribute five kilograms of cocaine (Count 1). The jury found Vassar guilty as charged in Count 3, and guilty of conspiring to distribute and to possess with the intent to distribute less than 500 grams of cocaine, acquitting him of conspiring to distribute and possess more than 500 grams of cocaine. The district judge, after calculating a Guidelines range of 168 to 210 months, sentenced Vassar to 144 months’ imprisonment. Vassar now appeals. II. Vassar’s Conviction A. Sufficiency of the Indictment Vassar raises numerous challenges to his conviction, arguing first that Count 1 of his indictment was insufficient, a matter we review de novo. United States v. Gatewood, 173 F.3d 983, 986 (6th Cir.1999). Specifically, Vassar claims that Count 1 is unconstitutionally vague because it alleges that the conspiracy began “on or before January 1, 2004” and that it involved “others known and unknown to the grand jury.” He further protests its failure to allege that the conspiracy was unlawful or that his participation was knowing and voluntary. Count 1 reads as follows: From on or before January 1, 2004, until on or about August 24, 2005, within the Eastern District of Tennessee, the defendants, DEWEY LYNN PHILLIPS, JAMES MARK THORNTON, MICHAEL CARL VASSAR, MICHAEL CHARLES GUNTER, and others known and unknown to the grand jury, did conspire, confederate and" }, { "docid": "20020768", "title": "", "text": "a second prosecution for the same crimes. It is not meant as a tool ... to obtain detailed disclosure of all evidence held by the government before trial.” United States v. Salisbury, 983 F.2d 1369, 1375 (6th Cir.1993). In challenging the district court’s denial of a motion for a bill of particulars, “the defendant must show not only that the court abused its discretion, but that defendant actually suffered surprise or other prejudice at trial.” Id. at 1375. First, Vassar argues that the district court erred by failing to grant his motion with respect to the identities of unnamed coconspirators in the indictment. He claims that this deficiency prevents him from “plead[ing] former jeopardy if charged again ... with an unnamed co-conspirator.” But the government “is not required to furnish the name[s] of all other co-conspirators in a bill of particulars.” Crayton, 357 F.3d at 568. And to the extent Vassar argues he was surprised by the government’s use of any other alleged coconspirators as witnesses, the inclusion of “others known and unknown” in the indictment provided Vassar with sufficient notice. Id. Second, he argues the government’s statement regarding the dates of the conspiracy in the bill of particulars to be insufficient. The bill of particulars explained that the phrase “on or before January 1, 2004” “simply reflects that the exact date the conspiracy arose was unknown to the government and the grand jury although the conspiracy was clearly in existence since on or about January 2004.” The bill further clarifies that the conspiracy began after April 18, 2002. Vassar complains that this statement mislead him because it deprived him of notice that the prosecution would present Stacy Phillips as a witness testifying to a conspiracy in 2003. Vassar fails to show that the government inadequately responded to the magistrate judge’s order. The bill of particulars accounted for the “on or before” phrasing, and further limited the conspiracy to after April 18, 2002. And as we explained, an indictment that is open-ended as to beginning dates but not end dates suffices. See, e.g., Hultgren, 713 F.2d at 89. Vassar cannot" }, { "docid": "163627", "title": "", "text": "was not. It is commonly understood that defendants who plead guilty typically receive a lesser sentence than those who don’t. 3. Terry: Evidence of Drug Quantity & Coconspirator Statements Terry contends that the district court erred in denying his motion for judgment of acquittal and motion for a new trial because the government presented insufficient evidence to prove that he possessed at least five kilograms of cocaine. In support, he first argues that the court erred in admitting evidence of the October 7, 2004, telephone call between Jones and Ricky Dee. He also argues that the other trial evidence was insufficient to establish the drug quantity. The district court admitted the evidence of the Jones-Dee call as coconspirator statements under Fed.R.Evid. 801(d)(2)(E). In the recorded conversation, Jones tells Dee that he had “a five, five demo with my man.” When Dee asked Jones where he got “that lick,” Jones said that “one of my homies who, uh, you know be grabbing ten of them at a time and s — t. He decided to woo-wop this broad this time, you know?” Presumably, the homie was Terry, the “ten” was ten kilograms, the “broad” was Townsend, and the “five, five” was the division between Jones and Terry of the seized drugs. Under Rule 801(d)(2)(E), a “statement is not hearsay if ... [t]he statement is offered against a party and is ... a statement by a co-conspirator of a party during the course and in furtherance of the conspiracy.” For coconspirator statements to be admissible, the government must prove by a preponderance of the evidence that “(1) a conspiracy existed, (2) the defendant and the declarant were members of the conspiracy, and (3) the statement(s) sought to be admitted were made during and in furtherance of the conspiracy.” United States v. Alviar, 573 F.3d 526, 540 (7th Cir.2009). According to Terry, the government failed to prove the third prong. Whether the Jones-Dee statements were properly admitted under Rule 801(d)(2)(E) turns on whether the evidence was sufficient to prove that Terry joined the overarching conspiracy charged in the indictment. As noted above, it" }, { "docid": "20020766", "title": "", "text": "371 (1991); see Yates, 354 U.S. at 311, 77 S.Ct. 1064. Here, by contrast, the indictment and Judge Greer’s instructions accurately stated the law; indeed, Vassar does not contend otherwise. The prosecutor, as Vassar concedes, described the conspiracy to the jury as involving Stacy and Dewey Phillips selling Vassar cocaine that he then sold to others, and the evidence supports the conviction for this conspiracy. See United States v. Newton, 389 F.3d 631, 636-37 (6th Cir.2004) (upholding defendant’s conspiracy conviction despite testimony of government agent because evidence sufficed to show conspiracy between defendant and other non-cooperating co-conspirators). Additionally, contrary to Vassar’s assertion, it does not follow from his acquittal for conspiracy involving more than 500 grams that the jury “rejected the Phillips conspiracy.” The jury may have found beyond a reasonable doubt Vassar’s participation in the conspiracy -with the Phillips-es, but remained unconvinced that the conspiracy involved over 500 grams of cocaine. See United States v. Jackson, 473 F.3d 660, 669-70 (6th Cir.2007) (evidence sufficiently supported conviction involving less than 50 grams of cocaine, even though witnesses testified to more than 50 grams, because “[t]he jury might have concluded that each of the government’s witnesses was somewhat — but only somewhat — credible, and discounted the testimony accordingly”). We therefore reject Vassar’s sufficiency-of-the-evidence argument. C. Bill of Particulars Vassar also challenges the adequacy of the bill of particulars. In his motion before the trial court, Vassar requested (among other things) disclosure of the name and address of each known but unnamed co-conspirator, the date he joined the conspiracy, and the date and place of each of his acts in furtherance of the conspiracy. The magistrate judge ordered a BOP on the meaning of the phrase “on or before January 1, 2004” in Count 1, but otherwise denied Vassar’s motion. Vassar asserts that the court erred; we disagree. We review for an abuse of discretion. United States v. Crayton, 357 F.3d 560, 568 (6th Cir.2004). A bill of particulars is “a tool to minimize surprise and assist [the] defendant in obtaining the information needed to prepare a defense and to preclude" }, { "docid": "20020769", "title": "", "text": "indictment provided Vassar with sufficient notice. Id. Second, he argues the government’s statement regarding the dates of the conspiracy in the bill of particulars to be insufficient. The bill of particulars explained that the phrase “on or before January 1, 2004” “simply reflects that the exact date the conspiracy arose was unknown to the government and the grand jury although the conspiracy was clearly in existence since on or about January 2004.” The bill further clarifies that the conspiracy began after April 18, 2002. Vassar complains that this statement mislead him because it deprived him of notice that the prosecution would present Stacy Phillips as a witness testifying to a conspiracy in 2003. Vassar fails to show that the government inadequately responded to the magistrate judge’s order. The bill of particulars accounted for the “on or before” phrasing, and further limited the conspiracy to after April 18, 2002. And as we explained, an indictment that is open-ended as to beginning dates but not end dates suffices. See, e.g., Hultgren, 713 F.2d at 89. Vassar cannot use a bill of particulars “to obtain detailed disclosure of all evidence held by the government before trial.” Salisbury, 983 F.2d at 1375. Even assuming the government’s bill of particulars was inadequate, any error was harmless. See United States v. Williams, 962 F.2d 1218, 1226 (6th Cir.1992) (conducting harmless error review where government allegedly failed to comply with bill of particulars order). Vassar asserts he had no notice that the government would present Stacy Phillips as a witness testifying to a 2003 conspiracy, but the record reveals the contrary. Vassar identified Stacy Phillips as a coconspirator cooperating with the government in his motion for subpoenas, dated February 1, 2006. The district court did not err. D. Motion to Question the Jury Foreman Vassar next argues that the district court erred by denying his request to question the jury foreman about the basis of the conspiracy verdict. He claims that the jury may have based its decision on Vassar’s transaction with Fann, and that the trial judge’s refusal to question the jury therefore violated his right" }, { "docid": "20020765", "title": "", "text": "government. Vassar correctly observes that an agreement with a government agent cannot constitute an unlawful conspiracy. See United States v. Pennell, 737 F.2d 521, 536 (6th Cir.1984). In support of his argument, he notes that Count 3 involved a transfer of cocaine to Fann, and that the jury convicted him of conspiring to distribute less than 500 grams of cocaine, even though the evidence of the conspiracy involving the Phillipses and others indicated more than 500 grams of cocaine. Vassar relies on Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), for the proposition that the law “requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Id. at 311-12, 77 S.Ct. 1064. Yates does not support Vassar’s claim. In Yates, the jury instructions included a “theory of conviction ... [that was] contrary to law.” Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991); see Yates, 354 U.S. at 311, 77 S.Ct. 1064. Here, by contrast, the indictment and Judge Greer’s instructions accurately stated the law; indeed, Vassar does not contend otherwise. The prosecutor, as Vassar concedes, described the conspiracy to the jury as involving Stacy and Dewey Phillips selling Vassar cocaine that he then sold to others, and the evidence supports the conviction for this conspiracy. See United States v. Newton, 389 F.3d 631, 636-37 (6th Cir.2004) (upholding defendant’s conspiracy conviction despite testimony of government agent because evidence sufficed to show conspiracy between defendant and other non-cooperating co-conspirators). Additionally, contrary to Vassar’s assertion, it does not follow from his acquittal for conspiracy involving more than 500 grams that the jury “rejected the Phillips conspiracy.” The jury may have found beyond a reasonable doubt Vassar’s participation in the conspiracy -with the Phillips-es, but remained unconvinced that the conspiracy involved over 500 grams of cocaine. See United States v. Jackson, 473 F.3d 660, 669-70 (6th Cir.2007) (evidence sufficiently supported conviction involving less than 50 grams of cocaine, even" }, { "docid": "20020771", "title": "", "text": "to a complete defense. We review for an abuse of discretion. United States v. Corrado, 304 F.3d 593, 603 (6th Cir.2002). We think that Judge Greer correctly concluded that Federal Rule of Evidence 606(b) barred him from granting Vassar’s motion. Rule 606(b) prohibits jurors from testifying: as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. See also United States v. Tines, 70 F.3d 891, 898 (6th Cir.1995) (“A jury’s interpre tation and application of the court’s instructions is a part of the deliberative process ... correctly excluded under Rule 606(b).”). For policy reasons, courts disfavor interrogations into the jury process. See, e.g., United States v. Logan, 250 F.3d 350, 379 (6th Cir.2001). Rule 606(b) permits a juror to testify about prejudicial information or outside influence “improperly brought to the jury’s attention,” but Vassar made no such showing here. The district court properly denied Vassar’s motion. E. Admission of Coconspirator’s Statements Vassar claims that the district court erred by allowing Dewey Phillips to testify about statements made by co-defendant Michael Gunter. The district court allowed the testimony pursuant to Federal Rule of Evidence 801(d)(2)(E), which provides that: “[a] statement is not hearsay if ... [it] is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” To properly admit such statements, “it must first be determined that the conspiracy existed, that the defendant was a member of the conspiracy, and that the co-conspirator’s statements were made ‘in furtherance of the conspiracy.’ ” United States v. Gessa, 971 F.2d 1257, 1261 (6th Cir.1992) (en banc) (quoting United States v. Vinson, 606 F.2d 149, 152 (6th Cir.1979)). We review for clear error. Id. Vassar asserts that Gunter’s statement that Vassar said Gunter might be able to get drugs from Dewey Phillips was “insufficient to establish a" }, { "docid": "20020773", "title": "", "text": "conspiracy,” but he offers no argument. And as the district court reasoned: “The statement ... attributed to Mr. Vassar, that Mr. Phillips might be able to help Mr. Gunter, clearly is an effort to continue the illegal conspiracy; that is, Mr. Phillips becoming a source of the cocaine rather than Mr. Vassar.” Vassar next argues that there was “not a scintilla of evidence” of the conspiracy other than Gunter’s statements, violating the rule that “[t]he contents of the statement ... are not alone sufficient to establish ... the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered.” Fed.R.Evid. 801(d)(2). Vassar is mistaken that no evidence existed. Stacy Phillips testified that he obtained kilograms of cocaine for Vassar to distribute, and Dewey Phillips said that he sold Vassar a kilogram of cocaine monthly in 2004 and 2005, and that he sold a kilogram of cocaine to Gunter. Such evidence suffices for Rule 801(d)(2) purposes. See United States v. Pierce, 62 F.3d 818, 827 (6th Cir.1995) (observing that the court needs only “some independent, corroborating evidence” in order to admit the coconspirator’s statements). Finally, Vassar contends Dewey Phillips’s testimony that Vassar no longer sold drugs at the time Phillips spoke with Gunter “defeated [his] being a member of [the] alleged conspiracy,” rendering Gunter’s statements inadmissible. See Fed.R.Evid. 801(d)(2)(E) (statement must be made “during the course ... of the conspiracy.”). But “[e]ven assuming that [Vassar] was no longer an active participant in the conspiracy ... he is nonetheless presumed to be a continuing member, and is chargeable for the subsequent acts of co-conspirators, so long [as] the conspiracy was ongoing and [Vassar] did not establish his affirmative withdrawal from the conspiracy.” United States v. Robinson, 390 F.3d 853, 882 (6th Cir.2004). The district court did not err by admitting Gunter’s out-of-court statements. F. Admission of Fann’s Recorded Statement Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Vassar next argues that the district court violated his Sixth Amendment Confrontation Clause rights by admitting a recorded hearsay statement" }, { "docid": "20020760", "title": "", "text": "more than 500 grams of cocaine. The district judge, after calculating a Guidelines range of 168 to 210 months, sentenced Vassar to 144 months’ imprisonment. Vassar now appeals. II. Vassar’s Conviction A. Sufficiency of the Indictment Vassar raises numerous challenges to his conviction, arguing first that Count 1 of his indictment was insufficient, a matter we review de novo. United States v. Gatewood, 173 F.3d 983, 986 (6th Cir.1999). Specifically, Vassar claims that Count 1 is unconstitutionally vague because it alleges that the conspiracy began “on or before January 1, 2004” and that it involved “others known and unknown to the grand jury.” He further protests its failure to allege that the conspiracy was unlawful or that his participation was knowing and voluntary. Count 1 reads as follows: From on or before January 1, 2004, until on or about August 24, 2005, within the Eastern District of Tennessee, the defendants, DEWEY LYNN PHILLIPS, JAMES MARK THORNTON, MICHAEL CARL VASSAR, MICHAEL CHARLES GUNTER, and others known and unknown to the grand jury, did conspire, confederate and agree with each other and others both known and unknown to distribute and to possess with intent to distribute five (5) kilograms or more of a mixture and substance containing a detectable amount of cocaine, a Schedule II controlled substance, in violation of Title 21, United States Code, Sections 846, 841(a)(1) and 841(b)(1)(A). We find this language sufficient. “An indictment is sufficient ‘if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.’ ” United States v. Mohney, 949 F.2d 899, 903 (6th Cir.1991) (quoting Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974)). Courts have found indictments insufficient where they are open-ended as to both beginning and end dates, see United States v. Cecil, 608 F.2d 1294, 1297 (9th Cir.1979), but sufficient where they fix the end of the conspiracy and provide an approximate start date, see" }, { "docid": "20020762", "title": "", "text": "United States v. Hultgren, 718 F.2d 79, 89 (5th Cir.1988); United States v. Simmons, No. 96-4196, 1998 WL 231103, at *1, 1998 U.S.App. LEXIS 8222, at *3-4 (7th Cir. Apr. 27, 1998); United States v. Mitchell, 765 F.2d 130, 133 (10th Cir.1985). And this court has observed that conspiracy indictments typically charge “others known and unknown to the grand jury;” such language does not render an indictment unconstitutionally vague. See United States v. Pingleton, 216 Fed.Appx. 526, 529 (6th Cir.2007). Vassar’s remaining challenges to the indictment also lack merit. See United States v. Barnes, No. 90-5165, 1991 WL 1336, at *5, 1991 U.S.App. LEXIS 506, at *14 (6th Cir. Jan. 10, 1991) (indictment need not specify that defendant “knowingly” committed offense because “[i]t is well settled that an indictment for conspiring to commit an offense need not allege with technical precision all the elements essential to the commission of the offense which is the object of the conspiracy”) (citing United States v. Reynolds, 762 F.2d 489, 494 (6th Cir.1985) (internal citation and quotation marks omitted)). The district court therefore correctly denied Vassar’s motion to dismiss Count 1. B. Sufficiency of the Evidence Next, Vassar argues that the evidence does not suffice to sustain his conviction for conspiracy to distribute cocaine. This challenge fails if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). To prove a conspiracy under 21 U.S.C. § 846, the government must demonstrate “(1) an agreement to violate drug laws ...; (2) knowledge and intent to join the conspiracy; and (3) participation in the conspiracy.” United States v. Martinez, 430 F.3d 317, 330 (6th Cir.2005). The agreement need not be formal; a “tacit or material understanding among the parties” is enough. Id. (quoting United States v. Avery, 128 F.3d 966, 970-71 (6th Cir.1997) (internal quotation marks and citation omitted)). Numerous witnesses testified to Vassar’s participation in the conspiracy. Stacy Lynn Phillips and" }, { "docid": "20020772", "title": "", "text": "Vassar made no such showing here. The district court properly denied Vassar’s motion. E. Admission of Coconspirator’s Statements Vassar claims that the district court erred by allowing Dewey Phillips to testify about statements made by co-defendant Michael Gunter. The district court allowed the testimony pursuant to Federal Rule of Evidence 801(d)(2)(E), which provides that: “[a] statement is not hearsay if ... [it] is offered against a party and is ... a statement by a coconspirator of a party during the course and in furtherance of the conspiracy.” To properly admit such statements, “it must first be determined that the conspiracy existed, that the defendant was a member of the conspiracy, and that the co-conspirator’s statements were made ‘in furtherance of the conspiracy.’ ” United States v. Gessa, 971 F.2d 1257, 1261 (6th Cir.1992) (en banc) (quoting United States v. Vinson, 606 F.2d 149, 152 (6th Cir.1979)). We review for clear error. Id. Vassar asserts that Gunter’s statement that Vassar said Gunter might be able to get drugs from Dewey Phillips was “insufficient to establish a conspiracy,” but he offers no argument. And as the district court reasoned: “The statement ... attributed to Mr. Vassar, that Mr. Phillips might be able to help Mr. Gunter, clearly is an effort to continue the illegal conspiracy; that is, Mr. Phillips becoming a source of the cocaine rather than Mr. Vassar.” Vassar next argues that there was “not a scintilla of evidence” of the conspiracy other than Gunter’s statements, violating the rule that “[t]he contents of the statement ... are not alone sufficient to establish ... the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered.” Fed.R.Evid. 801(d)(2). Vassar is mistaken that no evidence existed. Stacy Phillips testified that he obtained kilograms of cocaine for Vassar to distribute, and Dewey Phillips said that he sold Vassar a kilogram of cocaine monthly in 2004 and 2005, and that he sold a kilogram of cocaine to Gunter. Such evidence suffices for Rule 801(d)(2) purposes. See United States v. Pierce, 62 F.3d 818, 827 (6th Cir.1995)" }, { "docid": "14221882", "title": "", "text": "from Mr. Caro to Mr. Stallings further supports the government’s case. In September 1988, Mr. Caro delivered a “garbage bag” full of marijuana to Mr. Stallings. Twenty-two pounds of marijuana and one-half kilogram of cocaine was delivered in November 1988; one-fourth kilogram of cocaine in December 1988; one-half kilogram of cocaine in January 1989; one-half kilogram of cocaine and at least ten pounds of marijuana in June 1988; and twelve ounces of cocaine in late April 1989. Again, the jury could have reasonably inferred from the quantities delivered that Mr. Caro was engaged in more than a simple “buyer-seller” relationship with Mr. Stallings. The law is clear a defendant need not know all the details or all the members of a conspiracy. Moreover, a defendant’s participation in the conspiracy may be slight and may be inferred from the defendant’s actions so long as the evidence establishes a connection to the conspiracy beyond a reasonable doubt. Savaiano, 843 F.2d at 1294. Applying these principles to the record, we hold the evidence was more than sufficient to convict Mr. Caro of conspiracy to distribute drugs. E. Coconspirator Statements Mr. Caro contends the trial court erred in admitting statements against him under FecLR.Evid. 801(d)(2)(E), which provides that “a statement by a coconspirator of a party during the course and in furtherance of the conspiracy” is not hearsay. More specifically, he asserts the hearsay statements “should not have been introduced under the co-conspirator hearsay exception, as the court could not conclude as a result of the ‘James’ hearing that [he] was a part of a conspiracy or that the statements were made ‘in furtherance’ of the conspiracy.” This court will not disturb a trial court’s evidentiary ruling absent an abuse of discretion. United States v. Harmon, 918 F.2d 115, 117 (10th Cir.1990); United States v. Reyes, 798 F.2d 380, 383 (10th Cir.1986). Coconspirator’s hearsay statements are properly admitted into evidence pursuant to Fed.R.Evid. 801(d)(2)(E) if, by a preponderance of evidence, the trial court finds that 1) a conspiracy existed; 2) both the declarant and the defendant against whom the declaration is offered were members" }, { "docid": "20020774", "title": "", "text": "(observing that the court needs only “some independent, corroborating evidence” in order to admit the coconspirator’s statements). Finally, Vassar contends Dewey Phillips’s testimony that Vassar no longer sold drugs at the time Phillips spoke with Gunter “defeated [his] being a member of [the] alleged conspiracy,” rendering Gunter’s statements inadmissible. See Fed.R.Evid. 801(d)(2)(E) (statement must be made “during the course ... of the conspiracy.”). But “[e]ven assuming that [Vassar] was no longer an active participant in the conspiracy ... he is nonetheless presumed to be a continuing member, and is chargeable for the subsequent acts of co-conspirators, so long [as] the conspiracy was ongoing and [Vassar] did not establish his affirmative withdrawal from the conspiracy.” United States v. Robinson, 390 F.3d 853, 882 (6th Cir.2004). The district court did not err by admitting Gunter’s out-of-court statements. F. Admission of Fann’s Recorded Statement Citing Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), Vassar next argues that the district court violated his Sixth Amendment Confrontation Clause rights by admitting a recorded hearsay statement made by Rick Fann. But a statement is hearsay only if offered to prove the truth of the matter asserted. See Fed.R.Evid. 801(c). In the recording at issue, Fann leaves a voicemail for “Mike” stating that he is looking to obtain a couple of car windows. At trial, Fann testified that he and Vassar spoke in code about drug transactions, using car parts to represent cocaine. The recording thus demonstrated that Fann made statements to Vassar about cars — it was not submitted to prove the truth of Fann’s statements. Indeed, the government acknowledged that Fann’s statement was “on its face false.” The admission of Fann’s voicemail message therefore did not implicate Vassar’s Confrontation Clause rights. See Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985) (“The nonhearsay aspect [of an out-of-court statement] ... raises no Confrontation Clause concerns.”). G. Rule 17(c) Subpoenas Vassar faults the district court for quashing a host of subpoenas he issued under the ostensible authority of Federal Rule of Criminal Procedure Rule 17(c). A party" }, { "docid": "20020770", "title": "", "text": "use a bill of particulars “to obtain detailed disclosure of all evidence held by the government before trial.” Salisbury, 983 F.2d at 1375. Even assuming the government’s bill of particulars was inadequate, any error was harmless. See United States v. Williams, 962 F.2d 1218, 1226 (6th Cir.1992) (conducting harmless error review where government allegedly failed to comply with bill of particulars order). Vassar asserts he had no notice that the government would present Stacy Phillips as a witness testifying to a 2003 conspiracy, but the record reveals the contrary. Vassar identified Stacy Phillips as a coconspirator cooperating with the government in his motion for subpoenas, dated February 1, 2006. The district court did not err. D. Motion to Question the Jury Foreman Vassar next argues that the district court erred by denying his request to question the jury foreman about the basis of the conspiracy verdict. He claims that the jury may have based its decision on Vassar’s transaction with Fann, and that the trial judge’s refusal to question the jury therefore violated his right to a complete defense. We review for an abuse of discretion. United States v. Corrado, 304 F.3d 593, 603 (6th Cir.2002). We think that Judge Greer correctly concluded that Federal Rule of Evidence 606(b) barred him from granting Vassar’s motion. Rule 606(b) prohibits jurors from testifying: as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. See also United States v. Tines, 70 F.3d 891, 898 (6th Cir.1995) (“A jury’s interpre tation and application of the court’s instructions is a part of the deliberative process ... correctly excluded under Rule 606(b).”). For policy reasons, courts disfavor interrogations into the jury process. See, e.g., United States v. Logan, 250 F.3d 350, 379 (6th Cir.2001). Rule 606(b) permits a juror to testify about prejudicial information or outside influence “improperly brought to the jury’s attention,” but" }, { "docid": "20020783", "title": "", "text": "addiction from 2004 to 2005, he used cocaine on June 16, 2005 with Rick Fann, and his “only offense” was simple possession. The law, however, does not entitle Vassar to such an instruction. The district court need not use a defendant’s language in an instruction if its own “is accurate and sufficient.” United States v. Mack, 159 F.3d 208, 218 (6th Cir.1998) (internal quotation marks and citation omitted). Vassar’s proposed instruction does not constitute a statement of law, but rather represents a denial of the charges and Vassar’s view of the facts. The district court did not commit reversible error in declining to give this instruction. Id. (no error where instruction is not a statement of law but only an explanation of what defendant would have stated had he testified); United States v. Chowdhury, 169 F.3d 402, 407 (6th Cir.1999) (no reversible error where defense’s proposed instruction was not a “distinct legal theory” but merely “a recitation of [Defendant’s] view of the facts”). Second, Vassar claims that the district court erred by refusing to give a “buyer-seller instruction.” He argues that such instructions are mandatory “when raised by the evidence” and failure to give the instruction confused the jury “as to the difference between a buyer-seller relationship and a conspiracy.” Here, the government presented evidence of repeat purchases of large drug quantities — evidence that supports a finding of a conspiracy, not of a mere buyer-seller relationship. See United States v. Brown, 332 F.3d 363, 373 (6th Cir.2003). And “a conviction will not be reversed for failure to give a buyer-seller instruction where the district court gave complete instructions on the elements of conspiracy.” United States v. Musick, 291 Fed.Appx. 706, 730 (6th Cir.2008) (citing Riggs v. United States, 209 F.3d 828, 833 (6th Cir.2000)). The district court did not err in refusing to give this instruction. Third, Vassar asserts that the district court should have included the names of the codefendants in the court’s jury instruction pertaining to the conspiracy charged in Count 1 of the indictment. The district court, following both the indictment and pattern instruction, listed the" }, { "docid": "20020785", "title": "", "text": "co-defendants charged in the indictment in its instruction and told the jury that, to return a guilty verdict, it must find Vassar a member of the conspiracy charged in the indictment. The instruction accurately stated the law, and Vassar offers no argument to the contrary nor any authority to support his claim that the district court erred. The district court properly instructed the jury on the conspiracy count. See id. (court not required to instruct the jury that a conspiracy cannot exist between defendant and a government agent where “conspiracy involved multiple other persons with whom it was legally possible for appellant to conspire”). Finally, he challenges Judge Greer’s refusal to instruct the jurors on simple possession. Vassar appears to acknowledge that the district court correctly denied his request with respect to Count 3, because simple possession is not a lesser-included offense of distribution of a controlled substance. See United States v. Colon, 268 F.3d 367, 376-77 (6th Cir.2001). Instead, he argues that the district court erred by refusing this instruction for Count 1. But simple possession also does not constitute a lesser-included offense of conspiracy to distribute and possess with intent to distribute cocaine. See id. at 376. Thus, Vassar’s claim lacks merit. We conclude that the district court did not abuse its discretion in instructing the jury. III. Vassar’s Sentence A. Relying on Acquitted Conduct at Sentencing Vassar disputes the district court’s decision to find a fact that differed from a jury-found fact. Specifically, the district court found that he “was involved in the distribution or conspiracy to distribute between 3.5 to 5 kilos of cocaine,” while the jury found Vassar not guilty of conspiring to distribute more than 500 grams. According to Vassar, this amounted to sentencing him “for an incorrect conspiracy offense of conviction” in violation of both the Sixth Amendment and the principles of issue preclusion. Appellant’s Br. at 65-68. We disagree. As for his Sixth Amendment jury-trial right challenge, Vassar fundamentally misunderstands the meaning of a jury’s acquittal. An acquittal is not a finding of innocence, but merely a negative statement that the evidence" }, { "docid": "20387366", "title": "", "text": "the evidence. Failure to make the required motions constitutes a waiver of objections to the sufficiency of the evidence.” (citing United States v. Chance, 306 F.3d 356, 368-69 (6th Cir.2002))). Thus, our review is limited to whether there was a manifest miscarriage of justice. See id. Since Benson did not make a Rule 29 motion, this court must affirm unless the record is devoid of any evidence pointing to guilt. Jordan, 544 F.3d at 670. Benson admits that a conspiracy existed, but denies any intent to join it. Thus, we review whether there is any evidence that Benson intended to and did participate in the conspiracy. Numerous witnesses testified that Benson obtained cocaine from Humphry and then re-sold the cocaine, sometimes in the form of crack. Witnesses testified that Benson visited Humphry’s residence and sold the drugs that he bought from Humphry in Humphry’s presence. Several empty boxes of baking soda, a component used to manufacture crack, were found in Benson’s Cadillac. Also, a wrapper for a kilogram of cocaine was found inside Benson’s residence. Therefore, the evidence was sufficient to conclude that Benson intended to join the conspiracy and his conviction was not a miscarriage of justice. II. Admission of Co-Conspirator Statements Against Benson Benson argues that the testimony of his co-conspirators implicating him in the conspiracy was improperly admitted because no corroborating independent evidence, other than the statements themselves, supported a finding that he participated in the conspiracy. When, as here, a party does not timely raise an issue in district court or make an objection, an objection to the error is deemed forfeited and reviewed only for plain error. United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993). Under Federal Rule of Evidence 801(d)(2)(E), for co-conspirator hearsay statements to be admissible, the government must show by a preponderance of the evidence that: (1) a conspiracy existed, (2) the defendant against whom the hearsay is offered was a member of the conspiracy, and (3) that the statements were made during the course and in furtherance of the conspiracy. Bourjaily v. United States," }, { "docid": "20020764", "title": "", "text": "Dewey Lynn Phillips said that they sold multiple-kilogram quantities of cocaine to Vassar from 2003 through the summer of 2005. According to Stacy Phillips, up until late summer or early fall 2003, Vassar bought a kilogram of cocaine from him every few weeks and claimed to be reselling it. Dewey Phillips testified that between January 2004 and mid-summer 2005, he sold Vassar an average of one kilogram per month, and that Michael Gunter told Dewey that he bought cocaine from Vassar. Daniel Rice stated that he purchased over two kilograms of cocaine, partially for resale, from Vassar between May 2004 and January 2005. Melissa Thomas witnessed Vassar distributing what appeared to be cocaine at a local bar. Finally, Rick Fann testified that Vassar sold him cocaine beginning in early 2005. The evidence sufficiently supports Vassar’s conspiracy conviction. Despite all this testimony, Vassar urges us to vacate his conspiracy conviction because the jury “most likely” based its finding of guilt on the recorded sale of 6.61 grams of cocaine to Fann, who was cooperating with the government. Vassar correctly observes that an agreement with a government agent cannot constitute an unlawful conspiracy. See United States v. Pennell, 737 F.2d 521, 536 (6th Cir.1984). In support of his argument, he notes that Count 3 involved a transfer of cocaine to Fann, and that the jury convicted him of conspiring to distribute less than 500 grams of cocaine, even though the evidence of the conspiracy involving the Phillipses and others indicated more than 500 grams of cocaine. Vassar relies on Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), for the proposition that the law “requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Id. at 311-12, 77 S.Ct. 1064. Yates does not support Vassar’s claim. In Yates, the jury instructions included a “theory of conviction ... [that was] contrary to law.” Griffin v. United States, 502 U.S. 46, 59, 112 S.Ct. 466, 116 L.Ed.2d" } ]

[ { "docid": "7835735", "title": "", "text": "sole proprietorship enterprise, unless the sole proprietor is “strictly a one-man show.” McCullough v. Suter, 757 F.2d 142, 144 (7th Cir.1985) (“The only important thing is that [the enterprise] be either formally (as when there is incorporation) or practically (as when there are other people besides the proprietor working in the organization) separable from the individual.”); United States v. Benny, 786 F.2d 1410, 1415-16 (9th Cir.) (affirming RICO conviction where defendant’s “sole proprietorship was a troupe, not a one-man show”), cert. denied, 479 U.S. 1017, 107 S.Ct. 668, 93 L.Ed.2d 720 (1986); see also Guidry v. Bank of LaPlace, 954 F.2d 278, 283 (5th Cir.1992) (espousing the approach to sole proprietorships announced in McCullough, but holding that the distinctness requirement was not met under the circumstances of the case). Under this approach, which we now join, we find that the City has adequately alleged distinctness as to the NCCigarettes.com primary enterprise because the City has alleged that Herring’s sole proprietorship is not a one-man show. However, we agree with defendants Xfire and Reinhardt that the allegations are insufficient to state a claim against them as RICO persons. As explained earlier, § 1962(c) makes it “unlawful for any person employed by or associated with an enterprise ... to conduct or participate, directly or indirectly, in the conduct of such enterprise’s affairs....” 18 U.S.C. § 1962(c). In Reves v. Ernst & Young, the Supreme Court explained that “[i]n order to ‘participate, directly or indirectly, in the conduct of such enterprise’s affairs,’ one must have some part in directing those affairs.” 507 U.S. 170, 179, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993); see also id. at 184,113 S.Ct. 1163 (“[I]t is clear that Congress did not intend to extend RICO liability under § 1962(c) beyond those who participate in the operation or management of an enterprise through a pattern of racketeering activity.”). Although this is a low hurdle to clear at the pleading stage, see Satinwood, 385 F.3d at 176, the City’s allegations— most generously construed — simply do not clear it with respect to Xfire or Reinhardt. These defendants are not alleged" } ]

[ { "docid": "17569320", "title": "", "text": "Defendants’ end, after Plaintiff had used the software to properly input package weights and transmit shipping information to Defendants. (SAC ¶¶ 47.A-B, 116.) It is at that point that Defendants are alleged to have upweighted packages, improperly charged Canadian Customs, and/or improperly failed to apply discounts. Because Plaintiffs claims do not arise out of Plaintiff s use of Defendants’ licensed software, the clauses of the License Agreement and E-Agreement requiring that suits regarding that software be brought in the Western District of Tennessee within one year do not apply. B. Civil RICO The civil RICO statute makes it 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....” 18 U.S.C. § 1962(c). Defendants argue that Plaintiffs Section 1962(c) RICO claim fails as a matter of law because Plaintiff fails to allege (1) an adequately distinct enterprise, (Ds’ Mem. 23-27); (2) the required “pattern of racketeering activity,” (id. at 27-28); (3) plausible or particularly-pleaded predicate acts of mail and/or wire fraud, (id. at 28-32); and (4) the required operation or control, (id. at 32-33). I address each of these in turn. 1. Distinctness “[T]o establish liability under § 1962(c), one must allege and prove the existence of two distinct entities: (1) a ‘person’; and (2) an ‘enterprise’ that is not simply the same ‘person’ referred to by a different name.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001); see City of N.Y. v. Smokes-Spirits.com, Inc., 541 F.3d 425, 447 (2d Cir.2008) (“[T]he distinctness doctrine requires a plaintiff to demonstrate that the RICO person is legally separate from the RICO enterprise .... ”), rev’d on other grounds sub nom. Hemi Group, LLC v. City of N.Y., N.Y., 559 U.S. 1, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010), Defendants, relying principally on Discon, Inc. v. NYNEX Corp., 93 F.3d 1055 (2d Cir.1996), argue that the FedEx Ground Enterprise (consisting solely of" }, { "docid": "17479690", "title": "", "text": "that comprise the defendants’ corporate family. When we look to the other circuits, we find little direct guidance, but we do find substantial indications that to impose liability on a subsidiary for conducting an enterprise comprised solely of the parent of the subsidiary and related businesses would be to misread the statute. Ten other circuits require that the person and enterprise be distinct. Most of these circuits have suggested some limits on when related business entities, or business entities and their employees, may serve as both the person and enterprise under § 1962(c). See, e.g., Bachman v. Bear, Stearns & Co., 178 F.3d 930, 932 (7th Cir.1999); Brannon v. Boatmen’s First National Bank, 153 F.3d 1144, 1146-47 (10th Cir.1998);Compagnie De Reassurance D’Ile De France v. New England Reinsurance Corp., 57 F.3d 56, 92 (1st Cir.1995); Davis v. Mutual Life Ins. Co., 6 F.3d 367, 377 (6th Cir.1993), cert. denied, 510 U.S. 1193, 114 S.Ct. 1298, 127 L.Ed.2d 650 (1994); NCNB Nat’l Bank v. Tiller, 814 F.2d 931, 936 (4th Cir.1987), overruled on other grounds by Busby, 896 F.2d at 841-42; Atkinson v. Anadarko Bank & Trust Co., 808 F.2d 438, 440-41 (5th Cir.) (per curiam), cert. denied, 483 U.S. 1032, 107 S.Ct. 3276, 97 L.Ed.2d 780 (1987). Much of the controversy among these circuits concerns whether officers or employees of an entity may conduct an enterprise consisting of the employing entity. Compare, e.g., Jaguar Cars Inc. v. Royal Oaks Motor Co., 46 F.3d 258, 268-69 (3d Cir.1995) (stating the distinctiveness requirement is satisfied with allegations of “conduct by officers or employees who operate or manage a corporate enterprise”); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1534 (9th Cir.1992) (determining that employees may conduct their employer as a RICO enterprise), with Riverwoods Chappaqua Corp. v. Marine Midland Bank, 30 F.3d 339, 344-45 (2d Cir.1994) (stating that a group allegedly consisting of a corporation and two of its employees could not “conduct” the corporation itself as the RICO enterprise). The plaintiffs have not claimed that any employees or officers of RAC were the persons conducting the RICO enterprise, however, so we" }, { "docid": "17096881", "title": "", "text": "had qualified its obligation to use “best-efforts” to execute orders by warning that it might be unable to do so. Finally, the District Court dismissed the remaining breach of the implied covenant of good faith and fair dealing claim as largely redundant of the breach of contract claim. DISCUSSION “We review a district court’s dismissal of a complaint pursuant to Rule 12(b)(6) de novo.” Operating Local 649 Annuity Trust Fund v. Smith Barney Fund Mgmt. LLC, 595 F.3d 86, 91 (2d Cir.2010). “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.” Iq bal, 556 U.S. at 678, 129 S.Ct. 1937 (quotation marks omitted). A. Civil RICO Claim “To establish a RICO claim, a plaintiff must show: (1) a violation of the RICO statute, 18 U.S.C. § 1962; (2) an injury to business or property; and (3) that the injury was caused by the violation of Section 1962.” DeFalco v. Bernas, 244 F.3d 286, 305 (2d Cir.2001) (quotation marks omitted). To establish a violation of § 1962(c), in turn, a plaintiff must show that a person engaged in “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Id. at 306 (quotation marks omitted). “[UJnder the so-called ‘distinctness’ requirement, ... a plaintiff must ‘allege ... the existence of two distinct entities: (1) a “person”; and (2) an “enterprise” that is not simply the same “person” referred to by a different name.’ ” City of New York v. SmokesSpirits.com, Inc., 541 F.3d 425, 438 n. 15 (2d Cir.2008) (quoting Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001)), rev’d on other grounds sub nom. Hemi Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010). As we have long recognized, the plain language and purpose of the statute contemplate that a person violates the statute by conducting an enterprise through a pattern of criminality. It thus follows that a corporate person cannot violate" }, { "docid": "22209051", "title": "", "text": "element of Count 2. We consider these arguments in turn and conclude that they are without merit. A. Devaney argues that for purposes of 18 U.S.C. § 1962(c), the Government could not plead and prove that Dl-MEBA and NFOPAPE were the “enterprise” with which the defendants were associated and the “victim” of the predicate acts of racketeering. Devaney points to certain statements in Reves v. Ernst & Young, 507 U.S. 170, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993), and National Organization of Women, Inc. v. Scheidler, 510 U.S. 249, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994), for the proposition that while 18 U.S.C. §§ 1962(a) and (b) are concerned with activities that victimize the enterprise, § 1962(c) is limited to proscribing activities that use the enterprise as a “vehicle” to bilk third parties. Devaney’s argument draws heavily from a decision of the Third Circuit, Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258 (3d Cir.1995). That case involved a civil RICO action brought by Jaguar automobile corporation against a Jaguar dealership and its owners for defrauding Jaguar of more than a million dollars through the submission of five years’ worth of fraudulent warranty claims to Jaguar. Id. at 261. The central issue in Jaguar Cars was whether the Jaguar dealership was sufficiently distinct from its owners to satisfy the requirement that the “person” associated with the enterprise be distinct from the “enterprise” itself. Id. at 260. The court held that the distinctiveness requirement was met by bringing a claim against the defendant-owners as persons conducting the dealership enterprise through a pattern of racketeering activity. Id. at 268. In so holding, the court noted the statement of the Reves Court that “ ‘Congress consistently referred to subsection (c) as prohibiting the operation of an enterprise through a pattern' of racketeering activity and to subsections (a) and (b) as prohibiting acquisition of an enterprise.’ ” Id. at 267 (quoting Reves, 507 U.S. at 182, 113 S.Ct. at 1171). The court further observed that the Scheidler Court “held that the ‘enterprise’ in subsection (c) is properly viewed as the ‘vehicle" }, { "docid": "15071802", "title": "", "text": "are standalone corporate enterprises, namely: the “Newsday Enterprise,” consisting of defendant Newsday; the “Hoy Enterprise,” consisting of defendant Hoy; and the “ABC Enterprise,” consisting of ABC. Plaintiffs also allege the existence of an “association-in-fact” enterprise, which they label as the “Circulation Enterprise.” The Court begins its analysis with an examination of the ABC enterprise. a. The ABC Enterprise Defendants argue that plaintiffs’ claims as to the ABC enterprise should be dismissed because they failed to allege that defendants actually “conduct[ed] or participat[ed], directly or indirectly, in the conduct of such enterprise’s affairs.” See 18 USC § 1962(c). The “conduct” element requires that “one [] participate in the operation or management of the enterprise itself.” Reves v. Ernst & Young, 507 U.S. 170, 185, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993). Of course, the word “participate” makes clear that RICO liability is not limited to those with primary responsibility for the enterprise’s affairs, just as the phrase ‘directly or indirectly’ makes clear that RICO liability is not limited to those with a formal position in the enterprise; but some part in directing the enterprise’s affairs is required. First Capital Asset Mgmt. Inc. v. Satinwood, Inc., 385 F.3d 159, 176 (2d Cir.2004) (quoting Reves, 507 U.S. at 185, 113 S.Ct. 1163); see also Redtail Leasing, Inc. v. Bellezza, No. 95 Civ. 5191, 2001 WL 863556, at *4, 2001 U.S. Dist. LEXIS 10814, at *11 (S.D.N.Y. July 31, 2001) (“There is a ‘substantial difference’ between actual control over an enterprise and association with an enterprise in ways that do not involve control; only the former is sufficient under Reves.”). Although the Reves “operation or management” test sets forth a “low hurdle to clear at the pleading stage,” City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 449 (2d Cir.2008), overruled on other grounds by Hemi Group, LLC v. City of New York, — U.S. -, 130 S.Ct. 983, 994, 175 L.Ed.2d 943 (2010), plaintiffs have not cleared that hurdle vis-a-vis their allegations pertaining to the ABC Enterprise. Plaintiffs claim that defendants primarily controlled the affairs of ABC by mailing fraudulent circulation numbers" }, { "docid": "18183441", "title": "", "text": "actual malice because the defendant honestly believed his defamatory accusation was true). See also DeAngelis, 847 A.2d at 1270 (holding that there was insufficient evidence of actual malice because the defendant honestly believed the perjury allegations he made were true); Tucker, 237 F.3d at 284 (affirming district court’s finding of no actual malice in defamation claim based on the defendant’s misinterpretation of the plaintiffs Complaint because the jury could find no “more than [defendant’s] negligence in jumping to [a] conclusion”). Because the plaintiff cannot show that he has plausibly alleged that the defendant acted with actual malice as to the perjury statement, the plaintiff cannot state a claim for defamation based on this statement. All of the other statements have been dismissed for the plaintiffs failure to plead special damages or slander per se. The defendant’s motion to dismiss the plaintiffs defamation claim is therefore granted. Conclusion To the extent not specifically addressed above, any remaining arguments'are either moot or without merit. For the reasons explained above, the defendant’s motion to dismiss the plaintiffs Amended Complaint in its entirety is granted. The Clerk is directed to enter judgment dismissing the Amended Complaint with prejudice. The Clerk is also directed to close all pending motions. SO ORDERED. . Indeed, in Cedric Kushner, the Supreme Court called this \"enterprise” in Riverwoods f an \"oddly constructed entity,” and noted that \"[i]t is less natural to speak of a corporation as 'employed by’ or 'associated with' ” such an entity. 533 U.S. at 164, 121 S.Ct. 2087 (citing Riverwoods, 30 F.3d at 344). . Indeed, in City of New York v. Smokes— Spirits.com, Inc., 541 F.3d 425 (2d Cir.2008), rev’d and remanded on other grounds sub nom. Hemi Grp., LLC v. City of New York, 559 U.S. 1, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010), the Second Circuit Court of Appeals held that even a sole proprietorship could be a RICO \"enterprise” and satisfy the distinctness requirement, so long as the sole proprietorship is not \"strictly a one-man show.” Id. at 448-49 (quoting and citing McCullough v. Suter, 757 F.2d 142, 144 (7th Cir.1985))" }, { "docid": "6553528", "title": "", "text": "States v. Indelicato, 865 F.2d 1370, 1373 (2d Cir.1989) (en banc). “ ‘Enterprise’ is defined to ‘include!] any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.’ ” First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 173 (2d Cir.2004) (quoting 18 U.S.C. § 1961(4); additional internal quotes and alteration omitted). As the Supreme Court has explained, a RICO enterprise is “a group of persons associated together for a common purpose of engaging in a course of conduct,” the existence of which is proven “by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.” United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981). A “plaintiff asserting a civil RICO claim must be able to support allegations of (1) a RICO violation, (2) injury, and (3) transaction and loss causation.” McLaughlin v. American Tobacco Co., 522 F.3d 215, 222 (2d Cir.2008). With respect to causation, the Court of Appeals for the Second Circuit has recently set forth the applicable standard as follows: To show injury by reason of a RICO violation, a plaintiff must demonstrate that the violation caused his injury in two senses. First, he must show that the RICO violation was the proximate cause of his injury, meaning “there was a direct relationship between the plaintiffs injury and the defendant’s injurious conduct.” First Nationwide Bank v. Gelt Funding Corp., 27 F.3d 763, 769 (2d Cir.1994). Second, he must show that the RICO violation was the but-for (or transactional) cause of his injury, meaning that but for the RICO violation, he would not have been injured. UFCW Local 1776 v. Eli Lilly and Co., 620 F.3d 121, 132 (2d Cir.2010) (citing Holmes v. Sec. Investor Prot. Corp., 503 U.S. 258, 268, 112 S.Ct. 1311, 117 L.Ed.2d 532 (1992)). See also Hemi Group, LLC v. City of New York, — U.S.-, 130 S.Ct. 983, 989-91, 175 L.Ed.2d 943 (2010) (plaintiff city could not show proximate cause on RICO" }, { "docid": "6204803", "title": "", "text": "RICO enterprises, plaintiff has properly pleaded the enterprise element of a RICO claim. Moreover, SCS and Patient Focus themselves are not included as RICO defendants. Thus, plaintiff does not run afoul of the so-called distinctness requirement, according to which “a corporate entity may not be both the RICO person [who is held liable] and the RICO enterprise under section 1962(c).” Riverwoods Chappaqua Corp. v. Marine Midland Bank, N.A., 30 F.3d 339, 344 (2d Cir.1994); see, e.g., 4 K & D Corp. v. Concierge Auctions, LLC, 2 F.Supp.3d 525, 536, No. 13-CV-2527 (JGK), 2014 WL 904451, at *4 (S.D.N.Y. Mar. 10, 2014) (“Courts have repeatedly dismissed § 1962(c) claims alleging that a corporation was simultaneously a RICO ‘person’ and a RICO ‘enterprise’ (or part of a RICO ‘enterprise’ from which the corporation is not distinct).”) (collecting cases). In sum, plaintiff has properly pleaded a RICO enterprise. ii. Conduct In addition to pleading a RICO enterprise, a civil RICO plaintiff must also allege that each defendant “conduct[ed] or participate^], directly or indirectly, in the conduct of such enterprise’s affairs.” 18 U.S.C. § 1962(c). The Supreme Court has interpreted this statutory language to mean that the RICO defendant must have participated “in the operation or management of the enterprise.” DeFalco, 244 F.3d at 309 (citing Reves v. Ernst & Young, 507 U.S. 170, 185, 113 S.Ct. 1163, 122 L.Ed.2d 525 (1993)); see, e.g., First Capital Asset Mgmt., 385 F.3d at 176 (holding that “ ‘one is liable under RICO only if he participated in the operation or management of the enterprise itself ” (quoting Azrielli v. Cohen Law Offices, 21 F.3d 512, 521 (2d Cir.1994))). Under this standard, a person may not be held liable merely for taking directions and performing tasks that are “necessary and helpful to the enterprise,” or for providing “goods and services that ultimately benefit the enterprise.” U.S. Fire Ins. Co. v. United Limousine Serv., Inc., 303 F.Supp.2d 432, 451-52 (S.D.N.Y.2004) (internal citations and quotation marks omitted). Instead, “the RICO defendant must have played ‘some part in directing [the enterprise’s] affairs.’ ” First Capital Asset Mgmt., 385 F.3d at" }, { "docid": "3154542", "title": "", "text": "United States v. Computer Sciences Corp., 689 F.2d 1181, 1190 (4th Cir.1982). As the assoeiation-in-faet pleaded by Khurana is in reality the corporate entity, we must affirm the district court as to its dismissal of these claims against the corporate entities as the distinctiveness requirement is not met in relation to these two defendants. River Region and Innovative cannot simultaneously be both the enterprise and the named defendants. See Securitron, 65 F.3d at 263. Therefore, we conclude that Khurana’s attempt to circumvent the distinction requirement in regard to the corporate defendants by pleading an association-in-fact theory must be rejected. We must also consider the claims in relation to the other named defendants, the officers and employees of the two corporate entities. See, e.g., Banks v. Wolk, 918 F.2d 418, 424 (3d Cir.1990) (leaving RICO action intact against certain individual defendants while dismissing the corporate defendant for failure to withstand distinctiveness requirement); Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1411 (3d Cir.1991) (considering § 1962(c) claim separately for each defendant’s fulfillment of distinctiveness and other requirements). As we explained above, Khurana’s complaint essentially pleads the corporation as the enterprise. Section 1962(c) may impose liability on individual corporate officers and employees who conduct the corporate enterprise which employs them through a pattern of racketeering activity. See Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 266-269 (3d Cir.1995); United States v. Robinson, 8 F.3d 398, 407 (7th Cir.1993); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1534 (9th Cir.1992); Ashland Oil, Inc. v. Arnett, 875 F.2d 1271, 1280 (7th Cir.1989); McCullough v. Suter, 757 F.2d 142, 144 (7th Cir.1985); see also Securitron, 65 F.3d at 263. Accordingly, we reverse the dismissal of the remaining § 1962(e)-related claims against the three individual defendants. CONCLUSION For the foregoing reasons, we REVERSE in part and AFFIRM in part. We affirm the district court’s dismissal of Khurana’s claims based on alleged violations of § 1962(c) and § 1962(d) (to the extent they allege conspiracy to violate § 1962(c)) against the two corporate defendants. We also affirm the district court’s dismissal of" }, { "docid": "10452168", "title": "", "text": "747 F.2d at 400. This holding was recently reaffirmed in McCullough v. Suter, 757 F.2d 142 (7th Cir.1985). There, the Court held that, under § 1962(c), a sole proprietorship may be an enterprise with which its proprietor, the liable person, is associated if there is “some separate and distinct existence for the person [the proprietor] and the enterprise [the proprietorship].” Id., at 144, quoting Haroco, 747 F.2d at 402. As the Court explained, a “one-man band that does not incorporate, that merely operates as a proprietorship, gains no legal protections from the form in which it has chosen to do business; the man and the proprietorship really are the same entity in law and fact.” McCullough, 757 F.2d at 144. When the proprietor employs others in or incorporates the business, however, the enterprise becomes practically or formally distinct from its conductor, who may now be liable under § 1962. In this case, Radionic claims to meet the RICO enterprise requirement by alternately pleading two entities. See complaint, 1124. One entity is GTE itself; the second is an “association in fact” made up of GTE and the individual defendants, all of whom are employed by or a part of the company. See id., 117. Based on the interpretation of § 1962 spelled out in Haroco and McCullough, I find that both these enterprises are deficient as a matter of law, and taken together, independently justify this court’s dismissal of the RICO count as to GTE. With respect to the first enterprise, this judgment is arrived at especially easily. Haroco specifically held that a corporation cannot be both a liable person and the enterprise under § 1962(c). . Here, GTE is named in a § 1962(c) claim as both a defendant and the enterprise. The conclusion is too obvious even to state. The plaintiff appears to realize this fact and concentrates its efforts on its “association in fact” theory. See pi. mem. at 8-11. That theory — which recasts a corporation as an “association in fact” of itself and its employees — is essentially a linguistic maneuver designed to slip around the" }, { "docid": "23009319", "title": "", "text": "use of the terms “employed by” and “associated with” appears to contemplate a person distinct from enterprise. If Congress had meant to permit the same entity to be the liable person and the enterprise under section 1962(c), it would have required only a simple change in language to make that intention crystal clear. Recently, in McCullough v. Suter, 757 F.2d 142, 143-44 (7th Cir.1985), the Seventh Circuit addressed this identical question. The facts in McCullough involved a RICO count brought against a defendant whose sole proprietorship was the “enterprise” with which the defendant proprietor “associated.” The court held that such a RICO count was sufficient. Id. at 144. The court reasoned as follows. A sole proprietorship is a recognized legal entity, and, provided it has any employees, is in any event a “group of individuals associated in fact.” Id. at 143. Admittedly there is a problem if the sole proprietor is strictly “a one-man show.” Thus, if an individual had no employees or other associates it strains the imagination to say that the indi vidual associated with an enterprise comprised solely of himself or herself. That is the same as saying you can conspire with yourself. For this reason, Rae v. Union Bank, Haroco, and Computer Science hold that a corporate defendant cannot be employed by itself or associate with itself. Concededly the distinction wears thin when one considers that a sole shareholder of a corporation would, under the language of the statute, be able to “associate” with that corporation. However, such a corporate “one-man band” does receive some legal protections from the corporate form, and it is this sort of legal shield for illegal activity that Congress intended RICO to pierce. While a sole proprietorship with employees or associates does not receive similar legal protections “[t]he only important thing is that [the enterprise] be either formally (as when there is a corporation) or practically (as when there are other people beside the proprietor working in the organization) separable from the individual.” McCullough, 757 F.2d at 144. We adopt the Seventh Circuit’s analysis as the rule for this circuit. The" }, { "docid": "18183384", "title": "", "text": "in the affairs of the enterprise (the Tacopina Firm). This case thus falls squarely into the rule set out in Cedric Kushner, because the “eorporate/owner employee, a natural person, is distinct from the corporation itself.” 533 U.S. at 163, 121 S.Ct. 2087. See Palatkevich v. Choupak, No. 12cv1681, 2014 WL 1509236, at *14-15 (S.D.N.Y. Jan. 24, 2014) (finding distinctness requirement met for association-in-fact enterprise “where the defendant ‘person’ is a natural pérson who works for a corporation instead of the corporation itself’); see also G-I Holdings, Inc. v. Baron & Budd, 238 F.Supp.2d 521, 547 (S.D.N.Y.2002) (“[Defendants], as named partners and members of the law firm of Baron & Budd, are separate and distinct legal entities from the law firm they control, and which in turn purportedly controls the B & B Enterprise.”) It makes no difference that the plaintiff may be alleging an association-in-fact enterprise that includes people outside of the defendant’s law firm. “A RICO enterprise based on an association-in-fact theory is ‘a group of persons associated together for a common purpose of engaging in a course of conduct,’ the existence of which is ‘proved by evidence of an ongoing organization, formal or informal, and by evidence that the various associates function as a continuing unit.’ ” City of New York v. Smokes-Spirits.com, Inc., 541 F.3d 425, 447 (2d Cir.2008) (quoting United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 69 L.Ed.2d 246 (1981)), rev’d and remanded on other grounds sub nom. Hemi Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010). To determine whether the plaintiff has sufficiently pleaded an association-in-fact enterprise, courts “look to the hierarchy, organization, and activities to determine whether an alleged association functioned as a unit.” Id. (citation and quotations omitted). The plaintiff has alleged that all of the members of the “Tacopina Firm,” the “members, partners, and associates” of the defendant’s law firm, have worked together to commit various acts of wire fraud and extortion for the common purpose of generating profits for the firm. The defendant is the controlling figure," }, { "docid": "18183442", "title": "", "text": "Complaint in its entirety is granted. The Clerk is directed to enter judgment dismissing the Amended Complaint with prejudice. The Clerk is also directed to close all pending motions. SO ORDERED. . Indeed, in Cedric Kushner, the Supreme Court called this \"enterprise” in Riverwoods f an \"oddly constructed entity,” and noted that \"[i]t is less natural to speak of a corporation as 'employed by’ or 'associated with' ” such an entity. 533 U.S. at 164, 121 S.Ct. 2087 (citing Riverwoods, 30 F.3d at 344). . Indeed, in City of New York v. Smokes— Spirits.com, Inc., 541 F.3d 425 (2d Cir.2008), rev’d and remanded on other grounds sub nom. Hemi Grp., LLC v. City of New York, 559 U.S. 1, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010), the Second Circuit Court of Appeals held that even a sole proprietorship could be a RICO \"enterprise” and satisfy the distinctness requirement, so long as the sole proprietorship is not \"strictly a one-man show.” Id. at 448-49 (quoting and citing McCullough v. Suter, 757 F.2d 142, 144 (7th Cir.1985)) (internal quotation marks omitted). . One of the alleged acts occurred in June 2008, and is therefore time-barred. The other two occurred in 2010 and 2013. These RICO predicate acts are therefore timely filed. . Because this case was transferred from the District Court for the District of New Jersey pursuant to 28 U.S.C. § 1406, New York choice of law rules determine which state’s law applies. Caribbean Wholesales & Serv. Corp. v. U.S. JVC Corp., 855 F.Supp. 627, 629 (S.D.N.Y.1994) (\"If the transfer was made pursuant 28 U.S.C. 1406(a), because venue was improper in the transferor court, then the transferee state’s law is applicable.”) Nevertheless, the parties appear to agree that New York law applies here. The Court will accept this assumption for purposes of the breach of fiduciary duty claim. See Krumme v. West-Point Stevens Inc., 238 F.3d 133, 138 (2d Cir.2000) (“The parties' briefs assume that New York law controls, and such 'implied consent ... is sufficient to establish choice of law.’ ”) (internal citation omitted). . The plaintiff had also alleged" }, { "docid": "17096882", "title": "", "text": "(quotation marks omitted). To establish a violation of § 1962(c), in turn, a plaintiff must show that a person engaged in “(1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity.” Id. at 306 (quotation marks omitted). “[UJnder the so-called ‘distinctness’ requirement, ... a plaintiff must ‘allege ... the existence of two distinct entities: (1) a “person”; and (2) an “enterprise” that is not simply the same “person” referred to by a different name.’ ” City of New York v. SmokesSpirits.com, Inc., 541 F.3d 425, 438 n. 15 (2d Cir.2008) (quoting Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001)), rev’d on other grounds sub nom. Hemi Grp., LLC v. City of New York, N.Y., 559 U.S. 1, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010). As we have long recognized, the plain language and purpose of the statute contemplate that a person violates the statute by conducting an enterprise through a pattern of criminality. It thus follows that a corporate person cannot violate the statute by corrupting itself. See Bennett v. U.S. Trust Co. of New York, 770 F.2d 308, 315 (2d Cir.1985). “A ‘person’ is defined as ‘any individual or entity capable of holding a legal or beneficial interest in property,’ ” id. at 447 (quoting 18 U.S.C. § 1961(3)), while an “ ‘enterprise’ is defined as ‘any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity,’ ” id. (quoting 18 U.S.C. § 1961(4)). “[F]or an association of individuals to constitute an enterprise, the individuals must share a common purpose to engage in a particular fraudulent course of conduct and work together to achieve such purposes.” First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 174 (2d Cir.2004) (quotation marks omitted). We agree with the District Court that Cruz’s RICO claim fails because the amended complaint does not allege a continuing RICO enterprise distinct from the RICO “person.” Accordingly, we do not address whether the amended complaint pleaded mail and wire" }, { "docid": "3154543", "title": "", "text": "other requirements). As we explained above, Khurana’s complaint essentially pleads the corporation as the enterprise. Section 1962(c) may impose liability on individual corporate officers and employees who conduct the corporate enterprise which employs them through a pattern of racketeering activity. See Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 266-269 (3d Cir.1995); United States v. Robinson, 8 F.3d 398, 407 (7th Cir.1993); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1534 (9th Cir.1992); Ashland Oil, Inc. v. Arnett, 875 F.2d 1271, 1280 (7th Cir.1989); McCullough v. Suter, 757 F.2d 142, 144 (7th Cir.1985); see also Securitron, 65 F.3d at 263. Accordingly, we reverse the dismissal of the remaining § 1962(e)-related claims against the three individual defendants. CONCLUSION For the foregoing reasons, we REVERSE in part and AFFIRM in part. We affirm the district court’s dismissal of Khurana’s claims based on alleged violations of § 1962(c) and § 1962(d) (to the extent they allege conspiracy to violate § 1962(c)) against the two corporate defendants. We also affirm the district court’s dismissal of all claims alleging injury from “illegal competition.” Additionally, we affirm the district court’s dismissal of Khurana’s claims alleging termination injuries as a result of § 1962(b) and § 1962(c) violations. We reverse the district court’s dismissal of all other claims with directions to reinstate them for further proceedings consistent with this opinion. . Khurana's state law claims were remanded to state court following the district court's Fed. R.Civ.P. 12(b)(6) dismissal of his RICO claims. Only issues related to the dismissal of Khurana's RICO claims are before the panel. . 18 U.S.C. § 1962(b)-(d) is as follows: (b)It shall be unlawful for any person through a pattern of racketeering activity or through collection of an unlawful debt to acquire or maintain, directly or indirectly, any interest in or control of any enterprise which is engaged in, or the activities of which affect, interstate of foreign commerce. (c) It shall be 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" }, { "docid": "13693121", "title": "", "text": "and the connection of the mail and/or wire communications to the scheme.” In re Sumitomo Copper Litig., 995 F.Supp. 451, 456 (S.D.N.Y.1998). A RICO plaintiff must also plead facts sufficient to demonstrate that the plaintiffs injury was caused by the defendant’s racketeering activities. See Ideal Steel Supply Corp. v. Anza, 652 F.3d 310, 323 (2d Cir.2011). Where, as here, a RICO violation is predicated on acts of fraud, a plaintiff must allege that the defendant’s acts were not only the “but for” cause of plaintiffs injury, but the proximate cause as well, necessitating “some direct relation between the injury asserted and the injurious conduct alleged”; “[a] link that is too remote, purely contingent, or indirect is insufficient.” Hemi Grp., LLC v. City of New York, 559 U.S. 1, 8, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010) (internal quotation marks and alteration omitted). This causation requirement is necessary because “the less direct an injury is, the more difficult it becomes to ascertain the amount of a plaintiff’s damages attributable to the violation, as distinct from other, independent, factors.” Ideal Steel, 652 F.3d at 316 (quoting Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 458, 126 S.Ct. 1991, 164 L.Ed.2d 720 (2006) (alteration omitted)). B. Analysis 1. The Alleged Enterprise “ ‘Any principled analysis of a RICO claim ... must begin from an understanding of what enterprise is alleged.’ ” Freund v. Lerner, 09 Civ. 7117(HB), 2010 WL 3156037, at *6 (S.D.N.Y. Aug. 10, 2010) (quoting Spira v. Nick, 876 F.Supp. 553, 561 (S.D.N.Y.1995)) An enterprise is “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” First Capital Asset Mgmt., Inc. v. Satinwood, Inc., 385 F.3d 159, 173 (2d Cir.2004) This definition “is obviously broad.... The term ‘any’ ensures that the definition has wide reach, and the very concept of an association in fact is expan sive.” Boyle v. United States, 556 U.S. 938, 944, 129 S.Ct. 2237, 173 L.Ed.2d 1265 (2009); see also Automated Teller Mach. Advantage LLC v. Moore, No. 08 Civ. 3340, 2009" }, { "docid": "10452167", "title": "", "text": "(a), a “person” (such as a corporation-enterprise) acts unlawfully if it receives income derived directly or indirectly from a pattern of racketeering activity in which the person has participated as a principle ... and if the person uses the income in the establishment or operation of an enterprise affecting commerce.... This approach to subsection (a) thus makes the corporation-enterprise liable under RICO when the corporation is actually the direct or indirect beneficiary of the pattern of racketeering activity, but not when it is merely the victim, prize, or passive instrument of racketeering. 747 F.2d at 402 (emphasis in original). Section 1962(c), the Haroco Court implied by way of contrast, was fashioned for just those other situations in which the enterprise was merely the victim or instrument of others misdoings. Its “employed by or associated with” language, the Court reasoned, precluded liability based on an entity’s conduct of its own business. The provision, rather, “requires separate entities as the liable person and the enterprise which has its affairs conducted through a pattern of racketeering activity.” Haroco, 747 F.2d at 400. This holding was recently reaffirmed in McCullough v. Suter, 757 F.2d 142 (7th Cir.1985). There, the Court held that, under § 1962(c), a sole proprietorship may be an enterprise with which its proprietor, the liable person, is associated if there is “some separate and distinct existence for the person [the proprietor] and the enterprise [the proprietorship].” Id., at 144, quoting Haroco, 747 F.2d at 402. As the Court explained, a “one-man band that does not incorporate, that merely operates as a proprietorship, gains no legal protections from the form in which it has chosen to do business; the man and the proprietorship really are the same entity in law and fact.” McCullough, 757 F.2d at 144. When the proprietor employs others in or incorporates the business, however, the enterprise becomes practically or formally distinct from its conductor, who may now be liable under § 1962. In this case, Radionic claims to meet the RICO enterprise requirement by alternately pleading two entities. See complaint, 1124. One entity is GTE itself; the second" }, { "docid": "17569321", "title": "", "text": "“pattern of racketeering activity,” (id. at 27-28); (3) plausible or particularly-pleaded predicate acts of mail and/or wire fraud, (id. at 28-32); and (4) the required operation or control, (id. at 32-33). I address each of these in turn. 1. Distinctness “[T]o establish liability under § 1962(c), one must allege and prove the existence of two distinct entities: (1) a ‘person’; and (2) an ‘enterprise’ that is not simply the same ‘person’ referred to by a different name.” Cedric Kushner Promotions, Ltd. v. King, 533 U.S. 158, 161, 121 S.Ct. 2087, 150 L.Ed.2d 198 (2001); see City of N.Y. v. Smokes-Spirits.com, Inc., 541 F.3d 425, 447 (2d Cir.2008) (“[T]he distinctness doctrine requires a plaintiff to demonstrate that the RICO person is legally separate from the RICO enterprise .... ”), rev’d on other grounds sub nom. Hemi Group, LLC v. City of N.Y., N.Y., 559 U.S. 1, 130 S.Ct. 983, 175 L.Ed.2d 943 (2010), Defendants, relying principally on Discon, Inc. v. NYNEX Corp., 93 F.3d 1055 (2d Cir.1996), argue that the FedEx Ground Enterprise (consisting solely of FedEx Ground) is not distinct from its parent FedEx or from its sister FedEx Services because all are “businesses operating in a ‘unified corporate structure.’ ” (Ds’ Mem. 24-25.) Defendants cite a number of cases from within this district, many relying on Discon, as holding that RICO distinctiveness is not satisfied when the RICO “person” and “enterprise” are “companies in the same corporate family carrying out their regular business.” (Id. at 25-26.) Plaintiff argues that the Supreme Court in Cedric Kushner “sharply limited” Discon, and that RICO distinctness is satisfied by the formal corporate distinctness here. (See P’s Mem. 22-24). Cedric Kushner held that “[t]he corporate owner/employee, a natural person, is distinct from the corporation itself, a legally different entity with different rights and responsibilities due to its different legal status.” Cedric Kushner, 533 U.S. at 163, 121 S.Ct. 2087. In so holding, the Court relied both on the legal effect of incorporation, see id. (“[I]ncorporation’s basic purpose is to create a distinct legal entity, with legal rights, obligations, powers, and privileges different from those" }, { "docid": "6819806", "title": "", "text": "606, 105 S.Ct. 3291, 87 L.Ed.2d 437 (1985), criminals took over a corporate subsidiary which then managed to wrest control of the parent and use the parent as an instrument for further criminal activities. That would be a case of magnifying the powers of the criminal by seizing control of a legitimate organization. Which brings us to John Does 1 through 10. The Third Circuit, relying in part on our decision in McCullough v. Suter, 757 F.2d 142, 144 (7th Cir.1985), has held that an allegation that corporate officers or employees are using their corporation to perpetrate the frauds or other predicate acts satisfies the \"conduct the affairs through\" requirement. Jaguar Cars, Inc. v. Royal Oaks Motor Car Co., 46 F.3d 258, 267-69 (3d Cir.1995). However, it is one thing to allege that criminals are using a corporation to commit crimes, a natural meaning to impress on the statutory language of conducting an enterprise's affairs through a pattern of racketeering activity, and another to assert merely that since the corporation's unlawful scheme must have been hatched by someone connected to the corporation, the scheme (provided it satisfies the statute's pattern requirement) violates RICO. Corporations can act only through natural persons, so the approach that we are criticizing (and that we do not attribute to the Third Circuit, since Jaguar Cars was a case in which the defendants controlled the corporation, see 46 F.3d at 261) would eliminate any separate function for the \"conducts the affairs of through\" language of the stat ute if the perpetrator is a firm. If the scheme is actually hatched or directed by the board of directors or some other controlling group, whether the control is de facto or de jure, it will come close enough to the paradigmatic RICO ease to pass muster under the “family resemblance” test that we applied in the Fitzgerald case. That is the teaching of Jaguar Cars but is not alleged here. The plaintiffs’ inability to identify any actual corporate officers or employees as responsible parties shows that she is trying to truncate the statute in the manner that strikes" }, { "docid": "17675152", "title": "", "text": "enterprise under section 1962(c). Id. As to the policy considerations underlying the section, we noted that other courts had expressed concern that our interpretation might allow a corporation that constituted the “central figure in a criminal scheme” to escape liability, while subjecting only the corporation’s individual employees or associates to RICO’s severe sanctions. Id. at 401. In response to this argument, however, we pointed out the availability of section 1962(a) of RICO for reaching the corporate enterprise that is also a main perpetrator of the criminal scheme. Id. at 402. We explained that: As we parse subsection (a), a “person” (such as a corporation-enterprise) acts unlawfully if it receives income derived directly or indirectly from a pattern of racketeering activity in which the person has participated as a principal within the meaning of 18 U.S.C. § 2, and if the person uses the income in the establishment or operation of an enterprise affecting commerce. Subsection (a) does not contain any of the language in subsection (c) which suggests that the liable person and the enterprise must be separate. Under subsection (a), therefore, the liable person may be a corporation using the proceeds of a pattern of racketeering activity in its operations. Id. We recently reaffirmed this interpretation of section 1962(c) in McCullough v. Suter, 757 F.2d 142 (7th Cir.1985). In McCullough, we held that the defendant-proprietor of a sole proprietorship could be held liable under section 1962(c) on the theory that he conducted the affairs of the proprietorship through a pattern of racketeering activity. Id. at 143. We emphasized, however, that the sole proprietorship at issue in McCullough was a business with an identity distinct and separate from that of the defendant himself. Id. at 144. The defendant “had several people working for him; this made his company an enterprise, and not just a one-man band.” Id. “[I]f the sole proprietorship were strictly a one-man show,” on the other hand, we noted that Haroco would preclude liability for the defendant under section 1962(c). Id. Our holding in Haroco governs the present case. The government’s sole argument to the contrary is" } ]

[ { "docid": "18590922", "title": "", "text": "v. Morgantown Community Ass’n., 136 F.Supp. 292, 296 (N.D.W.Va. 1955), aff’d, 235 F.2d 354 (4th Cir. 1956); Evans v. Valley West Shopping Center Inc., 567 F.2d 358, 360 (9th Cir. 1978); August v. Aldan Rubber Company, 277 F.Supp. 652, 654 (E.D.Pa. 1967); Clements v. Snider, 409 F.2d 549 (9th Cir. 1969). Plaintiffs argue that the decision in Dur-rett v. Washington National Insurance Co., 621 F.2d 201 (5th Cir. 1980), requires a finding that the transfer was made at the time of the foreclosure sale. In Durrett, and in the subsequent Abramson v. Lakewood Bank & Trust Co., 647 F.2d 547 (5th Cir. 1981) (2-1 decision; Judge Clark dissenting), the Fifth Circuit held that deed of trust foreclosure sales held within one year prior to the filing of the bankruptcy petition were avoidable under § 67(d) of the old Bankruptcy Act (the predecessor of § 548 of the Code), even though the deeds of trúst were executed outside the one year period. Durrett has been applied to § 548 of the Bankruptcy Code in In re Madrid, 10 BR. 795, 800, n.13, (Bkrtcy.D.Nev. 1981). The cases do not discuss the effect of § 67(d)(5) of the old Act (§ 548(d)(1) of the Code) or relevant state law concerning perfection, but rest on the ground that a foreclosure sale constitutes a “transfer” within the meaning of § 1(30) of the old Act (which has been superseded by § 101(40) for cases under the Code). Insofar as Durrett and Abramson are inconsistent with this opinion, this Court declines to follow them. The conclusion that § 548(d)(1) deems the transfer to have been made at the time of the execution of the deed of trust best implements the purposes of the Bankruptcy Code and best harmonizes the Code with the body of commercial and real estate law. The result advocated by Plaintiffs and reached in Durrett would significantly chill participation at foreclosure sales, to the detriment of debtors in general. Participation at foreclosure sales is minimal, and sale prices rarely approximate the actual value of the property sold. Many legislatures, including Alaska’s , do" } ]

[ { "docid": "22443624", "title": "", "text": "F.2d 201 (5th Cir. 1980) and Abramson v. Lakewood Bank and Trust Co., 647 F.2d 547 (5th Cir. 1981). In the earlier case, Durrett sought to avoid a foreclosure that took place nine days before he filed Chapter XI. The trial court held the nonjudicial sale was a transfer as that term was used in section 67d of the Act but that the consideration paid at the sale was a “fair equivalent” under section 67d(l)(e)(l) and denied relief. The circuit court reversed. Section 67(d) of the former Act provided that every “transfer made and every obligation incurred by a debtor within a year” of bankruptcy is fraudulent as to existing creditors “if made or incurred without fair consideration by a debtor who is or will be rendered insolvent, without regard to actual intent ...” Fair consideration was defined as a “fair equivalent” in a good faith exchange. The controlling questions as seen by the Durrett court were (1) whether the trustee’s sale constituted a transfer and (2) whether fair equivalent value was paid. As to the transfer issue, the court acknowledged that the “actual transfer of title was made by Durrett to Fields, as trustee, via the deed of trust, executed April 7, 1969, to secure an indebtedness ...” P. 204. The transfer was more than one year before bankruptcy and therefore not vulnerable to attack under section 67d. The court held there was a second and final transfer on the day of the foreclosure sale, and this was within the one-year period. As to the fair equivalent value issue, the Durrett Court noted that the trial court found the fair market value of the property on the date of the foreclosure sale to be $200,000 and that the successful bid was $115,400 or 57.7 per cent of the fair market value. In reversing the trial court’s determination that the amount paid was a fair equivalent, the court of appeals held as a matter of law that the amount paid was not a fair equivalent, suggesting that any amount less than 70% of fair market value would not be equivalent" }, { "docid": "11068426", "title": "", "text": "language almost identical to § 548(a)(2) of the Code, the United States Court of Appeals for the Fifth Circuit stated that: We have been unable to locate a decision of any district or appellate court dealing only with a transfer of real property as the subject of attack under section 67(d) of the Act, which has approved the transfer for less than 70 percent of the market value of the property. Durrett v. Washington National Insurance Company, 621 F.2d 201, 203 (5th Cir. 1980). Consequently, the court in Durrett found that a transfer of the debtor’s property for only 57.7% of the fair market value of that property was avoidable under § 67d of the Act. Id. at 204. Significantly, the transfer which the Durrett court held was avoidable was the transfer of the debtor’s property at a foreclosure sale under a deed of trust. In a recent decision dealing with § 548(a)(2) of the Code, the Bankruptcy Court for the Eastern District of Tennessee (1) adopted the 70% standard of the Durrett court and (2) applied that test to determine the avoidability of a foreclosure sale of the debtor’s real property. Because the court found that the price at which the debtor’s property was sold at the foreclosure sale in that case was 80.8% of its fair market value, the court held that the transfer was for a “reasonably equivalent value”' and was, thus, not avoidable pursuant to § 548(a)(2). Although we are hesitant to hold that a sheriffs sale which was properly conducted according to Pennsylvania law is avoidable by a debtor who files a petition under the Code after that sale, none of the courts that have interpreted either § 67d(2)(a) of the Act of § 548(a)(2) of the Code have distinguished between a foreclosure sale and any other kind of transfer. Consequently, we conclude that where a sheriff’s sale (held within one year of the debtor’s filing under the Code and at a time when the debtor was insolvent) fails to bring a “reasonably equivalent value” in exchange for the property, then that sale is avoidable" }, { "docid": "18587879", "title": "", "text": "the interest in such property of the transferee, but if such transfer is not so perfected before the commencement of the case, such transfer occurs immediately before the date of the filing of the petition. The Court now examines related case law in order to ascertain whether an involuntary transfer by a secured creditor constitutes a transfer within the meaning of § 548, as well as when the transfer is deemed to have occurred. Counsel for CCI relies upon the case of Lovett v. Shuster, 633 F.2d 98 (8th Cir.1980) decided under the Bankruptcy Act. Therein, the Court considered whether the transfer of collateral for purposes of 67(d) (the fraudulent conveyance provision) took place upon debtor’s delivery of stock to the secured party; or upon assignment of title to the secured party. The Court held that for purposes of 67(d)(2), collateral was transferred upon delivery of possession. However, in Lovett, supra, the factual situation was significantly different from that at bar for the foreclosure sale took place some months after the filing of the petition in bankruptcy- Counsel for the defendants cite the case of In re Alsop, 14 B.R. 982, 8 B.C.D. 335, 5 C.B.C.2d 797 (Bkrtcy.D.Alaska 1981) in support of their position that a foreclosure sale within one year of bankruptcy does not constitute a transfer within the meaning of § 548. However, other courts have reached different results. In Durrett v. Washington Nat. Ins. Co., 621 F.2d 201 (5th Cir.1980), Debtor-in-Possession under the Bankruptcy Act sought to vacate the transfer of real property nine days prior to filing. The Fifth Circuit affirmed the District Court’s holding that a non-judicial sale constituted a transfer within the meaning of § 67(d). The Court further held that the sale price of $115,400 for a parcel valued by the Court at $200,000 was not a fair equivalent and was therefore avoidable under § 67(d). In Abramson v. Lakewood Bank and Trust Company, 647 F.2d 547 (5th Cir.1981) cert. denied, 454 U.S. 1164, 102 S.Ct. 1038, 71 L.Ed.2d 320 (1982), the Fifth Circuit reversed a lower court decision that a nonjudicial foreclosure" }, { "docid": "4789157", "title": "", "text": "permitted a trustee in bankruptcy to avoid transfers by the debtor in fraud of his creditors. Bankr.Act, Sec. 67(d)(2), H.R.Rep. No. 95-595, 95th Cong., 1st Sess. 375 (1977), U.S.Code Cong. & Admin.News 1978, p. 5787. Under Section 67(d)(2), fair consideration had to be given for a transfer and fair consideration included the requirement of good faith as well as fair equivalent value. Cohen v. Sutherland, 257 F.2d 737 (2d Cir. 1958). Under present Section 548(a)(2)(A) and (B)(i), if the two conditions of less than reasonably equivalent value and insolvency are present, there is a conclusive presumption of fraud, any intent to the contrary notwithstanding. 4 Collier on Bankruptcy 543-48 (15th ed. 1980). Fair consideration under former Section 67(d)(2), but for its good faith requirement, corresponds to reasonably equivalent value under Section 548(a)(2)(A). Cases under Section 67(d)(2) hold that fair consideration must be determined by the facts and circumstances of each case. In In re Ferris, 415 F.Supp. 33, 40 (W.D. Okl.1976), the Court held that the consideration was not fair in view of the facts that the mortgage had been reduced, the bankrupts had spent considerable sums which enhanced the value of the property, and the cost of replacement was estimated to be much more than the original building costs. A case upon almost identical facts with the case at bar is Durrett v. Washington National Insurance Co., 621 F.2d 201 (5th Cir. 1980). In Durrett there was only one bidder at the deed of trust foreclosure sale and he bid $115,400 (the exact amount necessary to liquidate the indebtedness secured by the deed of trust) for property valued at $200,000. The District Court for the Northern' District of Texas (460 F.Supp. 52) held that the payment of 57.7% of the value of the property was fair consideration. The Fifth Circuit reversed stating: We have been unable to locate a decision of any district or appellate court dealing only with a transfer of real property as the subject of attack under Section 67(d) of the Act, which has approved the transfer for less than 70 percent of the market value" }, { "docid": "1113173", "title": "", "text": "obtainable if the equipment were sold to a purchaser who intended to leave it in place and use it in a business operated at the same premises. The Court excluded this opinion from evidence, on the ground that the likelihood of the equipment being sold to such a purchaser is too slim to justify such a standard of valuation. Moreover, although Shea has left the equipment in the building, he has not used it in the operation of any business. It has only had occasional use by semi-retired officers of the Debtor, with no consideration being paid to Shea. The Court therefore concludes that the equipment had a value of $20,000 at the time of the equipment auction on February 7, 1986. In summary, therefore, the Court finds that the Debtor’s real estate was worth $70,000 at the time of the foreclosure, and that the equipment sold at auction in February of 1986 was then worth $20,000. Thus the real estate and equipment were sold at 53% and 25%, respectively, of their value. III. FORECLOSURES AS FRAUDULENT TRANSFERS A. General Principles In Durrett v. Washington National Insurance Co., 621 F.2d 201 (5th Cir.1980), real estate worth $200,000 was sold at a public foreclosure auction for $115,400, or 57.7% of its value. The court ruled that this was not “fair consideration” or a “fair equivalent” under § 67(d) of the former Bankruptcy Act; it held that the foreclosure sale was therefore a fraudulent transfer. The court recognized that under § 67(d) the transfer must occur within a year prior to the bankruptcy filing, and that in the case before it only the foreclosure sale and not the initial mortgage grant had occurred during the one year period. It ruled, however, that the broad definition of transfer under § 1 of the prior Act, which expressly included involuntary transfers, was sufficient to encompass a foreclosure sale. It viewed a transfer under a mortgage as a continuing event which is not final until the foreclosure sale. See also Abramson v. Lakewood Bank & Trust Co., 647 F.2d 547 (5th Cir.1981), where the same" }, { "docid": "145189", "title": "", "text": "the Bankruptcy Act of 1898. See Durrett v. Washington National Insurance Co., 621 F.2d 201 (5th Cir.1980); Abramson v. Lakewood Bank & Trust Co., 647 F.2d 547 (5th Cir.1981); Snyder, “Nonjudicial Foreclosure Under Deed of Trust May Be A Fraudulent Transfer of Bankrupt’s Property”, 47 Mo.L.Rev. 345 (1982). The language appearing in § 548(a)(2) is indistinguishable from that appearing in § 67(d)(2) of the Act. Therefore, this court concludes that a nonjudicial foreclosure sale is a transfer under § 548 of the Bankruptcy Code of 1978. See In re Coleman, 21 B.R. 832, 835 (Bkrtcy.S.D.Texas 1982); In re Thompson, 18 B.R. 67 (Bkrtey.E.D.Tenn. 1982); In re Smith, 21 B.R. 345 (Bkrtcy.M.D.Fla.1982). Although § 548 speaks in terms of the trustee’s power to avoid a transfer, it is clear that a chapter 13 debtor has standing to bring an avoidance action under § 548. Section 522(h) allows a debtor to avoid a transfer to the extent that the debtor could have exempted the property which is the subject of the transfer if such transfer is avoidable under § 544, 545, 547, 548, 549 or 724(a) and the trustee does not attempt to avoid such transfer, (underlining for emphasis) See In re Coleman, supra, at 835. Under Alabama law, the debtor would be entitled to exempt her residence. See Ala. Code § 6-10-2 (Supp.1982). Inasmuch as the chapter 13 trustee has not attempted to avoid this transfer, the debtor is entitled to proceed with this action. In an action to avoid a transfer pursuant to § 548(a)(2) the court must determine whether or not the price obtained at the foreclosure sale was less than a reasonably equivalent value in exchange for such transfer. In Durrett v. Washington National Insurance Co., supra, property valued at $200,000 was sold at a foreclosure sale for $115,400, which equaled the outstanding indebtedness remaining. The court determined that this price ($115,400) amounted to only 57.7% of the market value of the property ($200,000) and this was not fair consideration. In sales involving the foreclosure of a first mortgage or lien most courts follow the procedure utilized in" }, { "docid": "7030319", "title": "", "text": "issues pertaining to 11 U.S.C. § 548. The debtors’ motion for summary judgment simply alleges that no issues of material fact remain and they are entitled to judgment as a matter of law. The governing language in § 548(a)(2) is as follows: (a) The trustee may avoid any transfer of an interest of the debtor in property ... that was made ... within one year before the date of the filing of the petition, if the debtor ... (2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (B)(i) was insolvent on the date that such transfer was made ... or became insolvent as a result of such transfer. ...” Thus in order to avoid the transfer the debtors have a two-prong burden of proof. They must show that the value received was “less than a reasonably equivalent value” and that they were insolvent or were made insolvent by the transfer in question. The bankruptcy code sets forth no method to be used in determining what is or is not reasonably equivalent value. The provisions of § 548(a)(2) are almost identical to the provisions contained in § 67(d)(2) of the former Bankruptcy Act. The language of § 67(d)(2) stated that a transfer was fraudulent if made “without fair consideration by a debtor who is or will be thereby rendered insolvent.” A case decided under the act on facts very similar to the present case is Durrett v. Washington National Insurance Co., 621 F.2d 201 (5th Cir. 1980). In Durrett property valued at $200,000 was sold to the only bidder at a deed of trust foreclosure sale for $115,400 which was the exact amount necessary to liquidate the indebtedness secured by the deed of trust. The Fifth Circuit held that since the amount paid was only 57.7% of the value of the property it was not fair consideration. In making this holding the court in Durrett noted that it had been unable to locate any decision dealing with a transfer of real property under attack pursuant to § 67(d) of the Bankruptcy Act which had" }, { "docid": "18807403", "title": "", "text": "OF LAW The issue of whether a non-judicial foreclosure sale may be set aside as a fraudu lent conveyance has been resolved in this jurisdiction by Durrett v. Washington National Insurance Company, 621 F.2d 201 (5th Cir.1980). Under former Section 67(d)(2) of the Bankruptcy Act of 1898, the Fifth Circuit held (1) that a non-judicial foreclosure sale constitutes a “transfer made” within the contemplation of the fraudulent transfer provision of the Act, and (2) that recovery of only 57.7% of the property’s value was not a “fair equivalent” value for the property. The Fifth Circuit was “unable to locate a decision of any district or appellate court which had approved the transfer for less than 70% of the market value of the property”. Id. at 203. As a result, the pre-bankruptcy non-judicial foreclosure sale was set aside as being fraudulent. The Durrett progeny have had no problems in applying the Durrett reasoning to cases decided under Section 548 of the Bankruptcy Code. See In re Hulm, 738 F.2d 323 (8th Cir.1984), cert. denied, 469 U.S. 990, 105 S.Ct. 398, 83 L.Ed.2d 331 (1984). It is fair to say that Durrett has been heavily criticized by several well reasoned decisions. The two leading cases perhaps are In re Madrid, 725 F.2d 1197 (9th Cir. 1984) cert. denied, 469 U.S. 833, 105 S.Ct. 125, 83 L.Ed.2d 66 (1984) and Matter of Winshall Settlor’s Trust, 758 F.2d 1136 (6th Cir.1985). To summarize them, these decisions find fault with Durrett on policy as well as legal grounds. On the policy side, they argue that Durrett is an unwarranted interference with state real property laws and that creating a “defacto right of redemption” under federal bankruptcy law will do nothing but chill participation at foreclosure sales and further suppress the likely purchase prices obtained at them. Madrid, at 1202; Winshall, at 1139. On the legal side these cases have held that there was no “transfer made” at the time of the foreclosure sale. Rather, the transfer, for purposes of fraudulent conveyance analysis occurred when the mortgage or debt deed was perfected under state law. Madrid," }, { "docid": "18587880", "title": "", "text": "in bankruptcy- Counsel for the defendants cite the case of In re Alsop, 14 B.R. 982, 8 B.C.D. 335, 5 C.B.C.2d 797 (Bkrtcy.D.Alaska 1981) in support of their position that a foreclosure sale within one year of bankruptcy does not constitute a transfer within the meaning of § 548. However, other courts have reached different results. In Durrett v. Washington Nat. Ins. Co., 621 F.2d 201 (5th Cir.1980), Debtor-in-Possession under the Bankruptcy Act sought to vacate the transfer of real property nine days prior to filing. The Fifth Circuit affirmed the District Court’s holding that a non-judicial sale constituted a transfer within the meaning of § 67(d). The Court further held that the sale price of $115,400 for a parcel valued by the Court at $200,000 was not a fair equivalent and was therefore avoidable under § 67(d). In Abramson v. Lakewood Bank and Trust Company, 647 F.2d 547 (5th Cir.1981) cert. denied, 454 U.S. 1164, 102 S.Ct. 1038, 71 L.Ed.2d 320 (1982), the Fifth Circuit reversed a lower court decision that a nonjudicial foreclosure sale of debtor’s land was not a transfer within the meaning of § 67(d). The Court states: “... as this transfer occurred within the one-year period, it is subject to being set aside as fraudulent if it was made without fair consideration.” (p. 549). Other courts have reached similar results under the Bankruptcy Code. In In re Jones 20 B.R. 988 (Bkrtcy., E.D.Pa., 1982), Judge Goldhaber held that where a sheriff’s sale within one year of filing while debtor was insolvent failed to bring a reasonably equivalent value, it was avoidable under § 548(a)(2). Similar conclusions have been reached in In re Smith, 21 B.R. 345 (Bkrtcy.M.D.Fla.1982); and Matter of Marshall, 15 B.R. 738 (Bkrtcy.W.D.N.C.1981). While the foregoing cases deal with foreclosure upon real estate, the issue at bar concerns the involuntary sale of securities pledged as collateral. Under Pennsylvania law, upon a contract of pledge, title in the pledged property remains in the pled-gor subject to a lien in favor of the pledgee for the amount of the debt. Further, the pledgee is liable" }, { "docid": "3265527", "title": "", "text": "sale and therefore fell within the one-year period set forth in Section 67(d). Id. The Bankruptcy Appellate Panel for the Ninth Circuit also had to determine whether a non-judicial foreclosure of a deed of trust could be satisfied as a fraudulent conveyance under § 548 if the purchase price was significantly lower than the fair market value of the property. Lawyers Title Ins. Corp. v. Madrid (In re Madrid), 21 B.R. 424 (9th Cir. BAP 1982). The panel refused to adopt the Durrett 70% rule since it viewed a “regularly conducted sale, open to all bidders and all creditors [as] a safeguard against the evils of private transfers to relatives and favorites.” Id. at 426-27. The court conclusively presumed that the price bid at a regularly conducted, non-collusive foreclosure sale is the fair equivalent value of the property sold. See id. The Ninth Circuit Court of Appeals affirmed the result reached by the Appellate Panel’s decision, but failed to address the issue of what constitutes reasonably equivalent value. The Circuit Court focused instead on the question of when the transfer of the debtor’s property occurred. The court held that [t]he foreclosure sale was not a transfer under § 548(a) [rather] the transfer of Madrid’s property interest under § 548(a)(2)(A) occurred at the time the second deed of trust was perfected under Nevada law. [Since] [t]hat transfer was carried out more than one year prior to filing of the bankruptcy petition ... the transfer was not voidable as a § 548(a)(2)(A) fraudulent conveyance. Madrid v. Lawyers Title Ins. Corp. (In re Madrid), 725 F.2d 1197, 1199 (9th Cir.1984). Shortly after it issued its decision in Durrett, the Court of Appeals for the Fifth Circuit again had to determine whether a non-judicial foreclosure sale constituted a “transfer” within the meaning of Section 67(d) of the Bankruptcy Act. In Abramson v. Lakewood Bank & Trust Co., 647 F.2d 547 (5th Cir.1981), the court found that the foreclosure sale was a “transfer” within the meaning of the Act which occurred within a year of the filing of the bankruptcy petition, and consequently remanded the" }, { "docid": "3265526", "title": "", "text": "that the payment of $115,400 for an asset worth $200,000 was not a “fair equivalent”. The Circuit Court found that where a parcel of real estate was sold at a foreclosure sale for a price approximately 57.5% of the property’s fair market value, this was not a “fair equivalent” for the transfer of the property. Durrett, 621 F.2d at 203. The court observed that: [it has] been unable to locate a decision of any district or appellate court dealing only with a transfer of real property as the subject of attack under section 67(d) of the Act, which has approved the transfer for less than 70 percent of the market value of the property. Id. The court also noted that a “transfer of title to the real property ... by a trustee on foreclosure of a deed of trust to a purchaser at the sale constitutes a ‘transfer’ ... within the purview of section 67(d).” Id. at 204. Most importantly, the court found that the transfer was not final until the date of the foreclosure sale and therefore fell within the one-year period set forth in Section 67(d). Id. The Bankruptcy Appellate Panel for the Ninth Circuit also had to determine whether a non-judicial foreclosure of a deed of trust could be satisfied as a fraudulent conveyance under § 548 if the purchase price was significantly lower than the fair market value of the property. Lawyers Title Ins. Corp. v. Madrid (In re Madrid), 21 B.R. 424 (9th Cir. BAP 1982). The panel refused to adopt the Durrett 70% rule since it viewed a “regularly conducted sale, open to all bidders and all creditors [as] a safeguard against the evils of private transfers to relatives and favorites.” Id. at 426-27. The court conclusively presumed that the price bid at a regularly conducted, non-collusive foreclosure sale is the fair equivalent value of the property sold. See id. The Ninth Circuit Court of Appeals affirmed the result reached by the Appellate Panel’s decision, but failed to address the issue of what constitutes reasonably equivalent value. The Circuit Court focused instead on the" }, { "docid": "18587560", "title": "", "text": "1982). In support of their motion for summary judgment debtors rely on a series of cases which hold that a foreclosure sale which brings a low bid may be set aside as a fraudulent transfer. One of the leading cases in this area is Durrett v. Washington National Insurance Co., 621 F.2d 201 (5th Cir.1980), decided under § 67(d) of the Bankruptcy Act. In that case, the property was sold at a public, non-judicial foreclosure sale, for approximately 58% of its fair market value. Durrett is significant for two reasons. First, the court found the foreclosure on and repossession of the realty, not the creation of the lien, to be the relevant “transfer” of debtor’s property. See also Abramson v. Lakewood Bank and Trust Co., 647 F.2d 547 (5th Cir.1981). Second, the court held that the transfer was voidable as one for less than fair equivalent value stating: We have been unable to locate a decision of any district or appellate court dealing only with a transfer of real property as the subject of attack under section 67(d) of the Act, which has approved the transfer for less than 70 percent of the market value of the property. 621 F.2d at 203. This language is the basis for what has come to be known as the Durrett 70% rule. In support of their motion for summary judgment, the Sweets cite In Re Alsop, 14 B.R. 982 (Bkrtcy. Alaska 1981) (aff’d 22 B.R. 1017 (D.Alaska 1982)) in which the bankruptcy court rejected the Durrett analysis. In Alsop the holder of a note and deed of trust was the only bidder at a non-judicial foreclosure sale, bidding just over $300,000.00, the amount owed on the note. Contending that the fair market value of the property was $600,000.00, the debtors sought to set aside the foreclosure sale as a fraudulent conveyance under 11 U.S.C. § 548(a)(2). The Alsop court began by noting that under 11 U.S.C. § 548(d)(1) a transfer is deemed made when perfected by the transferee so that no bona fide purchaser from the debtor could acquire an interest superi- or" }, { "docid": "22443623", "title": "", "text": "property’s market value at the time of sale and concluded that it was not reasonably equivalent value. The sale was held to be a voidable fraudulent conveyance. Thereafter, the court gave Tur-ney a lien for the amount of his payment and for his attorneys fees in defending the fraudulent conveyance action. The title insurance company that had insured Turney’s title was also given a lien for attorneys fees in defending the fraudulent conveyance action. Turney and the title company appealed the fraudulent conveyance judgment; Madrid appealed the award of a lien for attorneys fees. We reverse the judgment setting aside the sale; the judgment awarding a lien for fees is thereby rendered moot. II The parties and this panel are aware of only two cases holding that a purchase at a nonjudicial sale under a deed of trust may be set aside as being a fraudulent conveyance. Both cases were decided by the Fifth Circuit Court of Appeals under provisions of the Bankruptcy Act of 1898. They are Durrett v. Washington Nat. Ins. Co., 621 F.2d 201 (5th Cir. 1980) and Abramson v. Lakewood Bank and Trust Co., 647 F.2d 547 (5th Cir. 1981). In the earlier case, Durrett sought to avoid a foreclosure that took place nine days before he filed Chapter XI. The trial court held the nonjudicial sale was a transfer as that term was used in section 67d of the Act but that the consideration paid at the sale was a “fair equivalent” under section 67d(l)(e)(l) and denied relief. The circuit court reversed. Section 67(d) of the former Act provided that every “transfer made and every obligation incurred by a debtor within a year” of bankruptcy is fraudulent as to existing creditors “if made or incurred without fair consideration by a debtor who is or will be rendered insolvent, without regard to actual intent ...” Fair consideration was defined as a “fair equivalent” in a good faith exchange. The controlling questions as seen by the Durrett court were (1) whether the trustee’s sale constituted a transfer and (2) whether fair equivalent value was paid. As to" }, { "docid": "3265525", "title": "", "text": "of a Chapter 13 debtor’s real property, the plaintiff argues that the foregoing sale is a fraudulent transfer that can be set aside pursuant to 11 U.S.C. § 548(a)(2) . The Courts of Appeals for the Fifth, Ninth, Eighth and Sixth Circuits have considered the issue of whether a non-judicial foreclosure sale should be set aside as a fraudulent transfer pursuant to § 548(a)(2). In the landmark case of Durrett v. Washington Nat. Insur., 621 F.2d 201 (5th Cir.1980), the Fifth Circuit was called upon to consider whether a transfer of property pursuant to a deed of trust is voidable under § 67(d) of the Former Bankruptcy Act. The district court in Durrett had earlier held that the non-judicial sale constituted a transfer within the purview of Section 67(d). Durrett v. Washington Nat Insur. Co., 460 F.Supp. 52, 54 (N.D.Tex. 1978). However, the district court found that the sale should not be set aside since it viewed the sale price of $115,400 as fair consideration and a fair equivalent. Id. On appeal, the debtor argued that the payment of $115,400 for an asset worth $200,000 was not a “fair equivalent”. The Circuit Court found that where a parcel of real estate was sold at a foreclosure sale for a price approximately 57.5% of the property’s fair market value, this was not a “fair equivalent” for the transfer of the property. Durrett, 621 F.2d at 203. The court observed that: [it has] been unable to locate a decision of any district or appellate court dealing only with a transfer of real property as the subject of attack under section 67(d) of the Act, which has approved the transfer for less than 70 percent of the market value of the property. Id. The court also noted that a “transfer of title to the real property ... by a trustee on foreclosure of a deed of trust to a purchaser at the sale constitutes a ‘transfer’ ... within the purview of section 67(d).” Id. at 204. Most importantly, the court found that the transfer was not final until the date of the foreclosure" }, { "docid": "18713789", "title": "", "text": "date of the filing of the petition, if the debtor— (2)(A) received less than a reasonably equivalent value in exchange for such transfer or obligation; and (B)(i) was insolvent on the date that such transfer was made or such obligation was incurred, or became insolvent as a result of such transfer or obligation; (ii) was engaged in business, or was about to engage in business or a transaction, for which any property remaining with the debtor was an unreasonably small capital; or (iii) intended to incur, or believed that the debtor would incur, debts that would be beyond the debtor’s ability to pay as such debts matured. In effect, plaintiffs assert that anytime property is sold at less than its appraised value at sheriff’s sale it should be conclusively presumed that the debtor “received less than a reasonably equivalent value in exchange for such transfer” satisfying the test of § 548(a)(2)(A). Contrawise, defendant asserts that it should be conclusively presumed that the proceeds received from a non-collusive and regularly conducted foreclosure sale are “reasonably equivalent value” under § 548(a)(2)(A). Lawyers Title Ins. Corp. v. Madrid (In re Madrid), 21 B.R. 424 (Bankr.App. 9th Cir.1982), aff'd on other grounds, 725 F.2d 1197 (9th Cir.1984). This Court agrees with and follows the latter reasoning. While plaintiffs have submitted no authority in support of their contention, the Court is aware that a somewhat similar view has found acceptance by the United States Court of Appeals for the Fifth Circuit in Durrett v. Washington Nat'I Ins. Co., 621 F.2d 201 (1980). See also, Abramson v. Lakewood Bank & Trust Co., 647 F.2d 547 (5th Cir.) (per curiam), cert. denied, 454 U.S. 1164, 102 S.Ct. 1038, 71 L.Ed.2d 320 (1981) {Durrett holding that a nonjudicial foreclosure sale was a transfer within the purview of § 67(d) of the Bankruptcy Act followed). In Durrett, the court held that a foreclosure sale, held nine days before the debtor’s Chapter XI petition, of a deed of trust recorded seven years earlier should be set aside under section 67(d) of the former Bankruptcy Act because the price paid at" }, { "docid": "3265524", "title": "", "text": "had independently commenced a proceeding seeking to set aside the fraudulent sale under § 548(a)(2). However, this court takes judicial notice of the contents of its files with regard to both this adversary proceeding and the case in which the adversary proceeding arose. E.g. ITT v. Lam (In re Colorado Corp.), 531 F.2d 463, 467 (10th Cir.1976); Duhart v. Carlson, 469 F.2d 471, 473 (10th Cir. 1972), and accordingly finds that the trustee has not made any attempt to avoid the transfer which is the subject of this proceeding. The debtor has claimed his interest in the property as exempt under New York state law and no timely objections have been sustained. Therefore, the debtor has met the additional hurdle set forth in § 522(h). See, Joing v. O & P Partnership, 61 B.R. 980, 982-83 (Bkrtcy.D.Minn. 1986). Based on the foregoing analysis, this court finds that the debtor has standing to pursue this matter pursuant to 11 U.S.C. § 522(h)(2). See id. Durrett and its Circuit Court Progeny In seeking to avoid a foreclosure of a Chapter 13 debtor’s real property, the plaintiff argues that the foregoing sale is a fraudulent transfer that can be set aside pursuant to 11 U.S.C. § 548(a)(2) . The Courts of Appeals for the Fifth, Ninth, Eighth and Sixth Circuits have considered the issue of whether a non-judicial foreclosure sale should be set aside as a fraudulent transfer pursuant to § 548(a)(2). In the landmark case of Durrett v. Washington Nat. Insur., 621 F.2d 201 (5th Cir.1980), the Fifth Circuit was called upon to consider whether a transfer of property pursuant to a deed of trust is voidable under § 67(d) of the Former Bankruptcy Act. The district court in Durrett had earlier held that the non-judicial sale constituted a transfer within the purview of Section 67(d). Durrett v. Washington Nat Insur. Co., 460 F.Supp. 52, 54 (N.D.Tex. 1978). However, the district court found that the sale should not be set aside since it viewed the sale price of $115,400 as fair consideration and a fair equivalent. Id. On appeal, the debtor argued" }, { "docid": "1113174", "title": "", "text": "AS FRAUDULENT TRANSFERS A. General Principles In Durrett v. Washington National Insurance Co., 621 F.2d 201 (5th Cir.1980), real estate worth $200,000 was sold at a public foreclosure auction for $115,400, or 57.7% of its value. The court ruled that this was not “fair consideration” or a “fair equivalent” under § 67(d) of the former Bankruptcy Act; it held that the foreclosure sale was therefore a fraudulent transfer. The court recognized that under § 67(d) the transfer must occur within a year prior to the bankruptcy filing, and that in the case before it only the foreclosure sale and not the initial mortgage grant had occurred during the one year period. It ruled, however, that the broad definition of transfer under § 1 of the prior Act, which expressly included involuntary transfers, was sufficient to encompass a foreclosure sale. It viewed a transfer under a mortgage as a continuing event which is not final until the foreclosure sale. See also Abramson v. Lakewood Bank & Trust Co., 647 F.2d 547 (5th Cir.1981), where the same court relied upon Durrett in reversing a summary judgment it entered in favor of a mortgagee. Durrett has been met by opposing views from other courts, principally from the Ninth Circuit Bankruptcy Appellate Panel and the Court of Appeals for the Ninth Circuit. Lawyers Title Insurance Corp. v. Madrid (In re Madrid), 21 B.R. 424 (Bankr. 9th Cir.1982), a decision of the appellate panel, was governed by the unamended provisions of § 101(50) and § 548 of the Bankruptcy Code, which were quite similar to those contained in § 1 and § 67(d) of the former Act. The appellate panel believed that fraudulent transfer principles under federal bankruptcy law should be harmonized with state foreclosure law, and expressed concern about bankruptcy courts upsetting settled state practices. It held that the price obtained at a non-collusive foreclosure sale properly conducted under state law is irrebuttably presumed to be “reasonably equivalent value” within the meaning of § 548(a)(2). On appeal, the Ninth Circuit agreed with the appellate panel that the Durrett rule has the undesirable effect of" }, { "docid": "18713790", "title": "", "text": "value” under § 548(a)(2)(A). Lawyers Title Ins. Corp. v. Madrid (In re Madrid), 21 B.R. 424 (Bankr.App. 9th Cir.1982), aff'd on other grounds, 725 F.2d 1197 (9th Cir.1984). This Court agrees with and follows the latter reasoning. While plaintiffs have submitted no authority in support of their contention, the Court is aware that a somewhat similar view has found acceptance by the United States Court of Appeals for the Fifth Circuit in Durrett v. Washington Nat'I Ins. Co., 621 F.2d 201 (1980). See also, Abramson v. Lakewood Bank & Trust Co., 647 F.2d 547 (5th Cir.) (per curiam), cert. denied, 454 U.S. 1164, 102 S.Ct. 1038, 71 L.Ed.2d 320 (1981) {Durrett holding that a nonjudicial foreclosure sale was a transfer within the purview of § 67(d) of the Bankruptcy Act followed). In Durrett, the court held that a foreclosure sale, held nine days before the debtor’s Chapter XI petition, of a deed of trust recorded seven years earlier should be set aside under section 67(d) of the former Bankruptcy Act because the price paid at the foreclosure sale, less than 70 percent of the fair market value of the property, was less than the “fair equivalent” for the transfer of the property. 621 F.2d at 203. Since § 548(a)(2)(A) is the successor to section 67(d) of the Act, tracking it in its essential respects, the question becomes whether the Durrett holding, that a price of less than 70 percent of fair market value is not “fair equivalent” for the transfer of property, should be similarly applied so that the price received in this case, which was two thirds of the appraised value of the property, should be conclusively presumed to be less than a “reasonably equivalent value” under § 548(a)(2)(A) of the Code. This Court holds that it should not. In declining to follow the Durrett rule, the Ninth Circuit Panel in In re Madrid, supra, 21 B.R. at 427, noted the well-nigh universal rule, recognized by the courts of Nevada, that mere inadequacy of price alone does not justify the setting aside of an execution sale. See generally, Annot.," }, { "docid": "11538772", "title": "", "text": "considerably less than its reasonably equivalent value and while plaintiff was insolvent, the transfer constitutes a fraudulent transfer under the Code. The United States Bankruptcy Court for the District of Nevada rescinded a nonjudicial foreclosure sale finding it to be a fraudulent transfer pursuant to § 548 in In re Madrid, 10 B.R. 795 (Bkrtcy., Nev.1981). In Madrid, the debtor’s residence, valued between $380,000.00 and $400,000.00, was sold at a foreclosure sale for $256,000.00, between 64% and 67% of its value. The debt- or subsequently filed a Chapter 11 bank ruptcy petition and sought to avoid the sale as a fraudulent transfer. The Bankruptcy Court avoided the transfer holding that the property sold for less than its reasonably equivalent value. In considering whether fair value was received, the court relied on the holding of the United States Court of Appeals for the Fifth Circuit in Durrett v. Washington National Insurance Co., 621 F.2d 201 (5th Cir. 1980) construing the fraudulent transfer provision of the former Bankruptcy Act. In Durrett, the Fifth Circuit held that $115,400.00 paid for property assessed at $200,000.00 or 57.7% of its value, is not a fair equivalent for the property, stating: We have been unable to locate a decision of any district or appellate court dealing only with a transfer of real property as the subject of attack under Section 67(d) of the Act, which has approved the transfer for less than 70 percent of the market value of the property. Id. at 203. Cf. Abramson v. Lakewood Bank and Trust Co., 647 F.2d 547 (5th Cir. 1981). The plaintiff’s property was clearly not sold for its reasonably equivalent value. The transfer of plaintiff’s property is therefore found to be fraudulent and is voided pursuant to § 522(h). III. THE LEVY AND SALE ARE VOIDED PURSUANT TO FLORIDA LAW The United States Bankruptcy Court has exclusive jurisdiction over all property of the debtor, wherever located. 28 U.S.C. § 1471(e). This provision empowers the Bankruptcy Court to determine the pendant state claim asserted by plaintiff that the Sheriff’s Sale of her property should be declared void pursuant" }, { "docid": "7030320", "title": "", "text": "not reasonably equivalent value. The provisions of § 548(a)(2) are almost identical to the provisions contained in § 67(d)(2) of the former Bankruptcy Act. The language of § 67(d)(2) stated that a transfer was fraudulent if made “without fair consideration by a debtor who is or will be thereby rendered insolvent.” A case decided under the act on facts very similar to the present case is Durrett v. Washington National Insurance Co., 621 F.2d 201 (5th Cir. 1980). In Durrett property valued at $200,000 was sold to the only bidder at a deed of trust foreclosure sale for $115,400 which was the exact amount necessary to liquidate the indebtedness secured by the deed of trust. The Fifth Circuit held that since the amount paid was only 57.7% of the value of the property it was not fair consideration. In making this holding the court in Durrett noted that it had been unable to locate any decision dealing with a transfer of real property under attack pursuant to § 67(d) of the Bankruptcy Act which had approved the transfer for less than 70% of the market value of the property. Durrett was followed by a second Act case, Abramson v. Lakewood Bank and Trust Co., 647 F.2d 547 (5th Cir. 1981). This reasoning has been adopted and followed by at least one case interpreting § 548(a)(2) of the Bankruptcy Code. In re Madrid, 10 B.R. 795 (Bkrtcy, Nevada 1981). In Madrid the sole bidder at the foreclosure sale paid 64% to 67% of the market value of the property. The court followed Durrett in rescinding the nonjudicial foreclosure sale stating that “[i]t is apparent that the Courts have established a firm 70% guideline because the greater the market value of a piece of property the more equity that can be cut off by the variation of a few percentage points.” In the present case the debtors’ property is encumbered with two liens of $14,000 and $5,700 respectively. Therefore the debtors’ equity in the property in question is $20,300. Home Savings Association purchased the property at the foreclosure sale for $5,700 or" } ]

[ { "docid": "13299057", "title": "", "text": "MEMORANDUM DECISION MANSFIELD, District Judge. Plaintiff, a manufacturer of electric brakes and clutches used in space vehicles, has sued three former employees (Everett, Miele and Lowell ) and their recently formed competitor (Lem Instruments Corp.) for treble damages under §§ 1 and 2 of the Sherman Act and for injunctive relief under § 4 of the Clayton Act. The gist of plaintiff’s claim is that the individual defendants conspired to destroy plaintiff’s business by various means, including (1) inducement of plaintiff’s customers, and particularly the Leach Corporation, an Apollo Moon Project contractor to which Guidance (plaintiff’s predecessor) supplied tape recorder clutches and similar components, to transfer their business to the defendants; (2) inducement of key employees to leave plaintiff’s employ and work for Lem; and (3) misappropriation of drawings, trade secrets and information acquired by defendants during their employment by plaintiff or Guidance. These allegations are denied. In the course of pretrial discovery proceedings, plaintiff noticed the taking of depositions in Pasadena, California, of two employees of the Leach Corporation (Zea and Ingle) as third-party witnesses, which are now scheduled to take place on January 11, 1967. Pursuant to Rule 45(d), plaintiff obtained from the United States District Court for the Southern District of California subpoenas duces tecum addressed to one of the witnesses (Zea) and to the Leach Corporation, ordering them to produce various records and documents for use on the depositions, including technical and scientific drawings and specifications, purchase orders from Leach to Lem, and correspondence. Defendants have moved to quash these subpoenas or, in the alternative, for an order barring copying of certain of the drawings and records to be produced and directing that the originals be sealed, on the ground that the documents contain confidential and privileged information of a trade secret nature belonging to the defendants, disclosure of which to the plaintiff, their competitor, would give it an unfair advantage in competing against them. Defendants’ motion is denied insofar as they seek to quash the subpoenas, for the reason that the defendants, being neither persons in possession or control of the documents, nor the persons" } ]

[ { "docid": "4556440", "title": "", "text": "only the subpoenaed parties can raise such an objection. Rhodes replies that the attorney-client privilege applies because the subpoenas seek communications between Rhodes as an individual and his legal counsel. Rhodes points out that the subpoenas define “Individual” and “Individuals” to include Rhodes solely in his personal capacity. Rhodes also argues that a privilege log would place an undue burden on Rhodes, and a cursory overview of the subpoenas reveal the intrusiveness of the subpoenas. On appeal, Rhodes offers two rules for standing. First, Rhodes suggests, “A party has standing to move to quash a subpoena addressed to another if the subpoena infringes upon the movant’s legitimate interests.” (Appellant’s Opening Br. at 14 (citing United States v. Raineri, 670 F.2d 702, 712 (7th Cir.1982).)) However, the “legitimate interest” rule applies to criminal subpoenas, and does not apply to a motion to quash brought under Rule 45. See Raineri, 670 F.2d at 712; In re Yassai, 225 B.R. 478, 481 (Bankr.C.D.Cal.1998). Second, Rhodes suggests, “[A] party has standing to challenge a subpoena issued to a nonparty if ‘the objecting party claims some personal right or privilege with regard to the documents sought.’ ” (Appellant’s Opening Br. at 14 (citing 9A Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 2459 (3d ed.2008).)) Although this rule has not been applied by the United States Court of Appeals for the Ninth Circuit, other courts have applied it. See, e.g., Brown v. Braddick, 595 F.2d 961, 967 (5th Cir.1979); Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 973-74 (C.D.Cal.2010); Platinum Air Charters, L.L.C. v. Aviation Ventures, Inc., No. 2:05-CV1451-RCJLRL, 2007 WL 121674, at *2 (D.Nev. Jan. 10, 2007). To determine the meaning of a Federal Rule of Civil Procedure, courts apply rules of statutory interpretation. See Delta Air Lines, Inc. v. August, 450 U.S. 346, 347-62, 101 S.Ct. 1146, 67 L.Ed.2d 287 (1981). First, courts look to the plain language of the rule. United States v. Fort, 472 F.3d 1106, 1110 (7th Cir.2007) (citing United States v. John Doe, Inc. I, 481 U.S. 102, 108-09, 107 S.Ct. 1656, 95 L.Ed.2d 94" }, { "docid": "1079003", "title": "", "text": "with regard to any of its commercial paper transactions and that except for one question he was neither asked nor did he give any testimony concerning the sale of commercial paper by defendant. Accordingly, it is contended that the subject matter of Williams’ testimony is outside the scope of the stipulation. Defendant’s arguments are well taken. It seems clear that plaintiffs cannot bottom their request for the transcript of Williams’ testimony on Pretrial Order No. 4. Plaintiffs’ reliance on Zients v. LaMorte, 319 F.Supp. 956 (S.D.N.Y.1970), mandamus denied, LaMorte v. Mansfield, 438 F.2d 448 (2d Cir. 1971) as authority mandating production of Williams’ transcript is also misplaced. This case stands for the proposition that the SEC confidentiality rules, which are utilized in nonpublic investigations, are for the benefit of the Commission and cannot be invoked by a witness to thwart discovery of his testimony if the witness is allowed to obtain a transcript of his testimony without prohibition against its disclosure to third parties. See also In re Four Seasons Securities Laws Litigation, 54 F.R.D. 527 (W.D.Okl.1972); White v. Jaegerman, 51 F.R.D. 161 (S.D.N.Y.1970). Here there has been no claim that the witness (Williams) was prohibited from disclosing the transcript to third parties. In fact, the Commission itself has disclosed a portion of Williams’ testimony in its Staff Report. Whether the transcript is discoverable in the instant proceeding is determined by testing plaintiffs’ demand under the applicable discovery provisions of the federal rules. Fed.R.Civ.P. 34(c) specifically contemplates discovery of documents and things from persons not parties to an action. Such discovery may be had by a subpoena duces tecum, pursuant to Fed.R.Civ.P. 45(b). See 8 C. Wright & A. Miller, Federal Practice & Procedure: Civil § 2204, at 594, § 2209 (1970). Plaintiffs in the instant matter have invoked this procedure in seeking documents from the nonparty witness (Williams). We have previously established that the subject matter of Williams’ testimony is relevant to the instant action. It has also been established that some of Williams’ testimony may be privileged. The court has found, however, that the privilege was waived by" }, { "docid": "13952533", "title": "", "text": "and the substance of the person’s testimony.” See Weiss v. Chrysler Motors Corp., 515 F.2d 449, 457 (C.A.2d 1975). Although discovery is limited to trial witnesses, and may be obtained only at time when the parties know who their expert witnesses will be, Id., plaintiff seems to be delaying and should produce all known expert witness information it has, since defendant has a right to this information. DOCUMENT REQUEST NUMBER 2 Defendant also seeks to compel production of document request no. 2. Plaintiff responds that the request seeks information protected by the attorney-client privilege and the work product doctrine, and that it is overly broad and irrelevant. Defendant requests all documents of communications between plaintiff and counsel other than defendant which concern labor negotiations from 1975 through 1986. First, if any communications are privileged or protected by the work product doctrine, it is the party asserting the objection that has the burden of establishing the existence of the privilege or the doctrine. See In re Arthur Treacher’s Franchisee Litigation, 92 F.R.D. 429 (E.D.Pa.1981); Moore’s, supra, ¶ 33.19. See also Conoco Inc. v. United States Department of Justice, 687 F.2d 724, 730 (3d Cir.1982) (party claiming work product protection has the burden of establishing the material sought to be protected comes within the doctrine). A general, unspecified objection to interrogatories on the ground of work product or attorney-client privilege is insufficient and improper. In re Shopping Carts Antitrust Litigation, 95 F.R.D. 299, 305 (S.D.N.Y.1982). Plaintiff has not established that the doctrine applies. It has not shown that the work product it seeks to protect was “ ‘prepared or obtained because of the prospect of litigation.’ ” In re Grand Jury Proceedings (FMC Corp.), 604 F.2d 798, 803 (3d Cir.1979) (quoting 8 C. Wright & A. Miller, Federal Practice and Procedure § 2024, at 198 (1970)). Nor has plaintiff identified any specific documents that are privileged. Whether documents are privileged or not is to be determined on an individual case-by-case basis and not based on a blanket assertion by the party claiming the privilege. Id. In order for this Court to determine" }, { "docid": "16036127", "title": "", "text": "produced 446 of those tapes in full as well as redacted versions of 16. Thus, Berlinger’s actions acknowledge that at least 85 percent of all of his footage is responsive to the Second Circuit Order. .Letter, Maura J. Wogan, Aug. 31, 2010, In re Application of Chevron., Nos. 10-1918, 1-1966 (2d Cir. filed Aug. 31, 2010). See also Berlinger Mem. [DI 44] 3-4 (admitting inaccuracy of Berlinger declaration claiming that the outtakes contained \"no material regarding the criminal prosecutions in general or specifically against Messrs. Perez and Reis Veiga.). . Hendricks Deck [DI 4] Ex. N (the \"July 20 Order\"). . Id. . Chevron Mem. [DI 3] 29. . Id. at 29-30. . Id. at 30. . Id. at 31 . Id. at 32 (citing Berlinger Deck, Apr. 23, 2010, ¶ 15). . Hendricks Decl. [DI 4], Exs. A-E. . Id. . The Lago Agrio plaintiffs make a similar assertion, arguing also that the Court has no jurisdiction over it \"[ujnless it construes the ... Motion as a § 1782 petition.” Lago Agrio Mem. [DI 15] 10. The Lago Agrio plaintiffs, however, lack standing to object to the application, regardless of whether it is treated as a new § 1782 application, except to the extent, if any, that the application seeks material as to which they have a claim of privilege. See, e.g., Estate of Ungar v. Palestinian Auth., 332 Fed.Appx. 643, 644 (2d Cir.2009) (quoting Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir.1975)) (“In the absence of a claim of privilege a party usually does not have standing to object to a subpoena directed to a non-party witness.”); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 2459 (2008) (“Ordinarily a party has no standing to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.”) (footnote omitted). . Berlinger Mem. [DI 14] 1 n. 1. . Berlinger Mem. [DI 27-2] 6. . Griggs v. Provident Consumer Discount Co., 459" }, { "docid": "6915772", "title": "", "text": "storage or computer processing.” Id., § 2702(a)(2). C. Whether a Party May Move to Quash a Subpoena Directed to a Third Party Under the SCA Defendants argued to Judge McDermott, and again in this court, that Crispin cannot assert the rights of Media Temple, Facebook, and MySpace, none of whom moved to quash the subpoenas directed to them. Judge McDermott did not address this issue in his decision. “Ordinarily a party has no standing to seek to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.” 9A Charles Wright & Ar thur Miller, Federal Practice & Procedure, § 2459 (3d ed. 2008). See also In re REMEC, Inc. Securities Litigation, Civil No. 04cv1948 JLS (AJB), 2008 WL 2282647, *1 (S.D.Cal. May 30, 2008) (“As a general proposition, a party lacks standing under Federal Rules of Civil Procedure Rule 45(c)(3) to challenge a subpoena issued to a non-party unless the party claims a personal right or privilege with respect to the documents requested in the subpoena”); Moon v. SCP Pool Corp., 232 F.R.D. 633, 636 (C.D.Cal.2005) (“A party cannot object to a subpoena duces tecum served on a nonparty, but rather, must seek a protective order or make a motion to quash”); Schmulovich v. 1161 Rt. 9 LLC, Civil Action No. 07-597(FLW), 2007 WL 2362598, *2 (D.N.J. Aug. 15, 2007) (“Personal rights claimed with respect to bank account records give a party sufficient standing to challenge a third party subpoena served upon financial institutions holding such information”); Richards v. Convergys Corp., Nos. 2:05-CV-00790-DAK, 2:05-CV-00812 DAK, 2007 WL 474012, *1 (D.Utah Feb. 7, 2007) (“[A] party has a personal right with respect to information contained in his personnel files sufficient to confer standing to move to quash a subpoena for his employment records served on a third party”); Arias-Zeballos v. Tan, No. 06 Civ. 1268(GEL)(KN), 2007 WL 210112, *1 (S.D.N.Y. Jan. 25, 2007) (“individuals, whose banking records are subpoenaed, have a privacy interest in their personal financial affairs that gives them" }, { "docid": "4475228", "title": "", "text": "engagements, as well as deposition transcripts and any trial transcripts. In response, Purinton stated his willingness to comply, subject to the approval of the attorney for his aceounting firm. He specifically stated that the firm does not routinely provide such transcripts, especially in cases in which the firm has signed confidentiality orders. The requested materials were not produced. The defendants now seek an order of this court to compel the production of Purinton’s reports, depositions, and trial transcripts from other proceedings in which he was engaged as an expert witness. Fed.R.Civ.P. 37(a), upon which the defendant relies, provides that a party may seek an order compelling discovery under certain circumstances. Subsection (2)(B) provides specifically for such an order upon motion, “[i]f a deponent fails to answer a question propounded or submitted under Rules 30 or 31____” In this instance, however, the “question” asked by defense counsel at the deposition was in fact a request to produce documents. The defendants did not submit a request for production of the documents in question to the plaintiffs as provided by Fed.R.Civ.P. 34. In fact, the defendants do not even assert that the plaintiff has possession of any of the requested materials, which were prepared by Purinton, plaintiffs expert witness, for purposes of other litigation. The defendants are therefore not entitled to an order compelling the plaintiff to produce these documents. See Fed.R.Civ.P. 37(a)(2). With regard to nonparties such as plaintiffs expert witness, a request for documents may be made by subpoena duces tecum pursuant to Rule 45. See Fed.R.Civ.P. 34(c). The defendants do not refute plaintiffs con tention that no subpoena duces tecum was submitted to plaintiffs expert requesting production of the reports, depositions, and transcripts in question. Assuming they did not do so, Purinton’s counsel had no opportunity to formally object to the defendants’ request as envisioned by the provisions of Fed.R.Civ.P. 45(c)(2)(B), which permits the recipient of a subpoena to serve a written objection and thereby avoid the subpoena except upon order of the issuing court. The defendants have simply not followed the applicable procedural rules for obtaining these documents from" }, { "docid": "393578", "title": "", "text": "seeks to quash a Government subpoena issued to a non-party, a former vendor to the corporation named in the indictment against movant. Although considered as part of the evidence submitted in movant's motion to quash his own subpoena, movant has no standing to quash the non-party's subpoena. Ponsford. v. United States, 771 F.2d 1305, 1308 (9th Cir.1985) (absent proprietary interest in documents sought, no standing to quash); Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir.1975) (absent claim of privilege, party usually has no standing to object to subpoena directed at non-party). . Although movant finds the failure of the government to name the additional vendors as indicative of an improper motive, the government is not obliged to name those suspected as additional co-conspirators to justify the issuance of the subpoena. . In the companion case of Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), the Court held that the seizure of a defendant’s business records did not compel him to be a witness against himself because the defendant was not compelled to create the records but had \"voluntarily committed [them] to writing” and therefore at the time of seizure or at the introduction of the evidence the defendant was not \"asked to say or to do anything.” Id. at 473, 96 S.Ct. at 2745. The reasoning in both Fisher and Andresen concludes that the Fifth Amendment privilege does not protect the contents of voluntarily prepared business records. Neither case, however, resolves the content/act-of-production dichotomy and thus both suggest that the Constitution may protect some personal papers from subpoena. See Note, Formalism, Legal Realism, and Constitutionally Protected Privacy Under the Fourth and Fifth Amendments, 90 Harv.L.Rev. 945, 947 (1977) (hereinafter “Formalism”). For example, the Court in Andresen recognized that ”[t]he ‘historic function' of the privilege has been to protect ‘ \"a natural individual from compulsory incrimination through his own testimony or personal records.” ’\" Andresen, 427 U.S. at 470-71, 96 S.Ct. at 2743-44, (quoting Beilis v. United States, 417 U.S. 85, 89-90, 94 S.Ct. 2179, 2183-84, 40 L.Ed.2d 678 (1974), quoting United States" }, { "docid": "18284093", "title": "", "text": "(readable) microfilm is the course pursued by the parties hereto, and if after such inspection the plaintiffs desire that portions be photocopied, then such expense will be borne by the plaintiffs. It is well settled that a district court may order that a party seeking discovery pay a portion of the expense incurred in obtaining discoverable materials. See, e.g., American Standard, Inc. v. Bendix Corp., 71 F.R.D. 443, 448 (W.D.Mo.1976); Wright & Miller, Federal Practice and Procedure: Civil § 2038, p. 277 (1970). The plaintiffs also ask that they be relieved from paying the invoice in the amount of $555.75 presented to them by FNBG at the conclusion of the depositions on November 22, 1985, for expenses incurred thus far in copying the requested documents. [The invoice indicates charges of 24.5 hours @ $10.00 for research time and 1243 pages at 25<t per page.] The research time will be borne by the defendant, FNBG. See Federal Sav. & Loan Ins. Corp. v. Krueger, 55 F.R.D. 512 (N.D.Ill.1972). (Defendants would be required to comply with the plaintiffs’ request for production of checks, bank statements and deposit slips where no question of confidentiality, privilege or immunity is involved.) If the bank’s record keeping is such that the only way readable documents may be presented to plaintiff for inspection is through photocopying of the microfilm, then the bank will bear the expense of the copying as well. Otherwise, the plaintiffs will pay the $310.75 photocopying costs. II. Sanctions The plaintiffs request sanctions against the defendant FNBG for its failure to make the subpoenaed documents available at the time of the taking of the depositions with their resulting ineffectiveness in discovery. Rule 37(a)(4), Federal Rules of Civil Procedure, provides for appropriate sanctions in the nature of reasonable expenses and fees incurred in obtaining an order compelling discovery, unless the court finds that opposition to the motion was substantially justified or other circumstances which would make an award of expenses unjust. The defendant, FNBG, has based its objection to plaintiffs’ request for production of the documents upon what it perceived to be the plaintiffs’ failure" }, { "docid": "7440916", "title": "", "text": "designate a person to testify to matters known or reasonably available to the Navy pursuant to Rule 30(b)(6). The Navy responded, again objecting to the procedure followed by plaintiffs, and asserting that a subpoena duces tecum must be directed to the person who has custody of the documents or in this case the Secretary of the Navy in Washington, D. C. Plaintiffs then filed an additional motion to compel discovery of the documents requested, including the Aircraft Accident Report. On May 17, 1972 the district court found that the Navy had refused to designate a person to testify and had refused to comply with the subpoena duces tecum. Apparently rejecting the Navy’s objections to the procedure, the court granted plaintiffs’ motion to compel the discovery and ordered that the documents sought, including the Aircraft Accident Report, be produced. On July 25, 1972 in a “Motion for Reconsideration” the Secretary of the Navy raised the doctrine of executive privilege and sought to have the court reverse its order. By this time, only the Aircraft Accident Report was involved. The court found that the claim of executive privilege came too late, and refused to change its previous ruling. This appeal followed. For purposes of clarity, it is to be remembered that the real controversy was over the production of documents. However, the failure of the Navy to designate a person to testify is intermixed in that, and as will be seen, the Navy was in clear error in not so designating. This, however, is a peripheral question separate and apart from the issue of using Rule 30(b) (6) to obtain documents from a non-party where the documents are outside the jurisdiction of the court. I. Initially it should be noted that discovery orders are generally not appealable. See 8 Wright and Miller, Federal Practice and Procedure: Civil § 2006 (1970). However, discovery orders may be appealable when an executive privilege is involved and the executive or governmental agency is not a party to the lawsuit. Carr v. Monroe Manufacturing Co., 5 Cir., 1970, 431 F.2d 384, 387; Caswell v. Manhattan Fire &" }, { "docid": "16036128", "title": "", "text": "15] 10. The Lago Agrio plaintiffs, however, lack standing to object to the application, regardless of whether it is treated as a new § 1782 application, except to the extent, if any, that the application seeks material as to which they have a claim of privilege. See, e.g., Estate of Ungar v. Palestinian Auth., 332 Fed.Appx. 643, 644 (2d Cir.2009) (quoting Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir.1975)) (“In the absence of a claim of privilege a party usually does not have standing to object to a subpoena directed to a non-party witness.”); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 2459 (2008) (“Ordinarily a party has no standing to quash a subpoena issued to someone who is not a party to the action, unless the objecting party claims some personal right or privilege with regard to the documents sought.”) (footnote omitted). . Berlinger Mem. [DI 14] 1 n. 1. . Berlinger Mem. [DI 27-2] 6. . Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982); United States v. Rodgers, 101 F.3d 247, 251 (2d Cir.1996). . As noted, Berlinger argues that the present application “is a second and separate application for discovery under 28 U.S.C. § 1782.” . Chevron I, 709 F.Supp.2d at 290-91. See also In re Application of Chevron Corp., supra note 5. . Chevron I, at 290-92. . Id. at 291-93. . Berlinger Mem. [DI 14] 6-7 (quoting Carter v. City of New York, No. 02 Civ. 875(RJH), 2004 WL 193142, at *1 (S.D.N.Y. Feb. 2, 2004)). . If taken literally, the quoted language would mean that a vacationing reporter who happened to see an armed robbery or another who, in the course of covering a trial, saw a defendant threaten a witness or bribe a juror could not compelled to testify to what the reporter had seen unless the party seeking the testimony could overcome the privilege. . Chevron I, at 293-94 (quoting Gonzales v. Nat’l Broadcasting Co., 194 F.3d 29, 32, 35 (2d Cir.1999) (footnote" }, { "docid": "3107788", "title": "", "text": "December 21 and 22 of 1998. The Government’s responses to the interrogatories, however, were incomplete. Moreover, the Government failed to comply with the TCC’s document request. See U.S. Ex. 26 (letter from counsel for United States to counsel for TCC acknowledging incom pleteness of discovery response dated January 28, 1999). Accordingly, the TCC requested that the Government supplement its responses in compliance with the Court’s ruling. See Movants’ Ex. P (letter from counsel of TCC to counsel for United States dated December 24, 1998). Once again the Government delayed, stating that it could not respond to the supplemental discovery requests until the parties entered into a stipulation resolving certain concerns that it had with respect to the Privacy Act. U.S. Ex. 26 (correspondence from counsel for United States addressing Privacy Act issues). The Movants acquiesced and a stipulated order enabling them to access, on a confidential basis, information that the Government said was protected by the Privacy Act was entered by the Court on February 22, 1999. U.S. Ex. 37. Nonetheless, the United States’ recalcitrance in complying with Court-ordered discovery continued. It made no efforts to supplement its admittedly incomplete interrogatory responses or to provide the documents requested by the TCC. Brief in Support of Motion at 10-11. And significantly, this was so despite the fact that the deadline for completing all discovery on matters other than expert witnesses and tort causation, March 5, 1999, was fast approaching. See Scheduling Order ¶¶2 and 3. On February 25, 1999, the TCC served notice of its intent to depose certain Government employees on March 9,10 and 11. The United States resisted this effort as well, filing a motion to quash the depositions on March 8, 1999. See United States’ Motion to Quash [TCC] Deposition Notices and Subpoenas Duces Tecum, or, in the Alternative, for a Protective Order. Somewhat ironically, the United States argued that the depositions should be quashed since they were scheduled to take place after the deadline for completing discovery. Id. at 3 (“The United States seeks protection from the discovery because it is untimely.”). The Movants filed a motion" }, { "docid": "7207485", "title": "", "text": "to withdraw the subpoena addressed to Bank Leumi Le Israel and to serve a new subpoena on Bank Leumi Trust Company. With respect to the remaining 11 subpoenas, the first issue is whether the moving defendants have standing to object to the issuance of subpoenas against non-parties. “Ordinarily a party has no standing to seek to quash a subpoena to one who is not a party unless the party claims some personal right or privilege with regard to the documents sought.” 9 Wright & Miller, Federal Practice and Procedure § 2457 (1971). The moving defendants argue that they have personal privacy rights in the records sought by plaintiff. This claim is sufficient to give them standing to pursue their present motion. The Court finds, however, that whatever privacy interests the moving defendants have in the material sought do not so outweigh the plaintiffs right to pursue relevant material that the subpoenas must be quashed. Instead, in view of the policies underlying the Right to Financial Privacy Act of 1978, 12 U.S.C. § 3401 et seq., and the Family Educational and Privacy Rights Act, 20 U.S.C. § 1232g, the Court will impose limitations on the subpoenas so as to restrict their scope to material that pertains to the acts specified in the complaint. The 12 subpoenas seek documents from 1980 to date. However, the entire 55 page complaint fails to reflect any claims for relief by plaintiff due to acts of the defendants prior to August 1987. Paragraph 9 of plaintiffs complaint charges that “[beginning in or about August 1987 and continuing to or about May, 1988 ... defendants ... devised a plan ... to defraud me to obtain moneys through false pretenses in violation of 18 U.S.C. § 1964.” Plaintiff has not advanced any reason to believe that records prior to August 1987 will be relevant to her claim, and the Court will therefore modify the time period addressed by the subpoenas to the period from August 1987 until the date this lawsuit was commenced. The Court finds the subpoenas to be otherwise reasonable. The breadth of material sought appears" }, { "docid": "23589630", "title": "", "text": "failed to satisfy its burden in moving to quash the subpoena. (Plaintiff’s Memo at 13-15.) Merrill Lynch disputes each of plaintiffs’ three assertions. (Memorandum of Law in Further Support of Motion of Nonparty Witness Merrill Lynch to Quash Subpoena, Concord Boat Corp. v. Brunswick Corp., No. M. 8-85 (“Merrill’s Memo in Support”), at 2-7 (Oct. 14, 1996).) This Court briefly will review the legal principles underlying the parties’ dispute before moving on to the three specific issues raised in the parties’ respective papers. I. Rule 26 and Rule 45 Rule 26 of the Federal Rules of Civil Procedure sets forth the “General Provisions Governing Discovery” for civil suits in the' federal courts. It authorizes parties to obtain “discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action,” and all information “reasonably calculated to lead to discovery of admissible evidence.” Fed.R.Civ.P. 26(b)(1). Rule 26(c), however, curtails this power by providing that [u]pon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court ... may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the disclosure or discovery not be had; (2) that the disclosure or discovery maybe had only on specified terms and conditions. Fed.R.Civ.P. 26(c). Rule 45 provides a corresponding level of protection for persons subject to subpoena. 9A Wright & Miller, Federal Practice and Procedure: Civil 2d § 2449, at p. 75 (1995). Rule 45(c), entitled “Protection for Persons Subject to Subpoenas,” in relevant part states: (c)(2)(B) ... a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney" }, { "docid": "393577", "title": "", "text": "mooted the motion to quash. According to the government the Opinion will be “misinterpreted and inappropriately cited in future cases” and therefore should be modified or withdrawn. Upon review, this request is denied. The Opinion contains a discussion of the legal issues presented to the court at the time of the motion to quash and eschews any application of the law discussed to any particular documents involved in this case. Moreover, the Opinion held that the application of the law to the facts there presented required a review of the documents and that the court was awaiting the development of a complete factual record before applying the discussion to the documents involved. The Opinion is neither “preliminary” nor “incomplete.” Whether the Opinion is subject to misinterpretation because the circumstances of this particular case precluded the court from applying the Opinion to the facts on this record is not within the further control of the court. Accordingly, the government’s informal request is denied. It is so ordered. . By letter of May 31, 1990 movant also seeks to quash a Government subpoena issued to a non-party, a former vendor to the corporation named in the indictment against movant. Although considered as part of the evidence submitted in movant's motion to quash his own subpoena, movant has no standing to quash the non-party's subpoena. Ponsford. v. United States, 771 F.2d 1305, 1308 (9th Cir.1985) (absent proprietary interest in documents sought, no standing to quash); Langford v. Chrysler Motors Corp., 513 F.2d 1121, 1126 (2d Cir.1975) (absent claim of privilege, party usually has no standing to object to subpoena directed at non-party). . Although movant finds the failure of the government to name the additional vendors as indicative of an improper motive, the government is not obliged to name those suspected as additional co-conspirators to justify the issuance of the subpoena. . In the companion case of Andresen v. Maryland, 427 U.S. 463, 96 S.Ct. 2737, 49 L.Ed.2d 627 (1976), the Court held that the seizure of a defendant’s business records did not compel him to be a witness against himself because the" }, { "docid": "20314143", "title": "", "text": "the defendant seeks is not sufficient. Therefore, plaintiffs’ motion for protective order is denied. Plaintiffs are ordered to produce documents responsive to the request to the extent they have such documentation. The portion of the defendant’s motion to compel that seeks a release from plaintiffs to obtain their bank records is denied. Plaintiffs are not ordered, to produce documents that are held by a non-party to this litigation, such as financial institutions. See e.g. Johnson v. Kraft Foods North America, Inc., et al., 236 F.R.D. 535, 540 (D.Kan.2006) (“[T]he court finds no basis within Fed.R.Civ.P. 34 to compel a party signature. The appropriate procedure to compel non-parties to produce documents is to serve them a subpoena as set forth in Rule 45 of the Federal Rules of Civil Procedure. It is only after the individuals or entities object on grounds of privilege or otherwise fail to produce the documents pursuant to subpoena that the Court will consider a motion requesting (1) the Court compel the entity to produce the documents pursuant to Rule 45; or (2) compel the party to execute appropriate releases pursuant to the Court’ general powers to enforce its own orders.”); see also Clayton Brokerage Co., Inc. of St. Louis v. Clement, 87 F.R.D. 569, 571 (D.Md.1980) (citing United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (“In Miller, the Supreme Court held that a bank customer has no ‘legitimate expectation of privacy’ in the contents of checks, deposit slips and other banking documents. These records are not confidential communications but instruments of commercial transactions____[T]he documents sought ... are the business records of the bank, and the issuance of a subpoena requiring the bank to produce its records is not violative of any cognizable privacy right of the defendant.”)) CONCLUSION For the reasons set forth above, plaintiffs’ first motion to compel responses to interrogatories and document request is GRANTED in part and DENIED in part. (Docket No. 28.) The defendant’s motion to compel is DENIED (Docket No. 32), and the Plaintiffs’ motion for a protective order is DENIED. (Docket No. 36.) Plaintiffs’" }, { "docid": "13488723", "title": "", "text": "of the Rigsbys’ e-mails in the course of discovery for a civil lawsuit. Similar to the plaintiffs in Theofel, the Rigsbys seek to protect the privacy of their e-mails, asserting that they are privileged, personal, and unrelated to the civil lawsuit. In line with the court’s reasoning in Theofel, the Court finds that the Privacy Act protects the Rigsbys’ stored e-mails because the Rigs-bys have a legitimate interest in the confidentiality of their personal e-mails being stored electronically by AOL. Agreeing with the reasoning in O’Grady, this Court holds that State Farm’s subpoena may not be enforced consistent with the plain language of the Privacy Act because the exceptions enumerated in § 2702(b) do not include civil discovery subpoenas. Furthermore, § 2702(b) does not make any references to civil litigation or the civil discovery process. For the foregoing reasons, Magistrate Judge Poretz did not clearly err when he found that the Privacy Act prohibits AOL from producing the Rigsbys’ e-mails in response to State Farm’s subpoena because the Privacy Act’s enumerated exceptions do not authorize disclosure pursuant to a civil discovery subpoena. 2. Undue Burden The Court upholds Magistrate Judge Poretz’s Order, quashing State Farm’s subpoena, because the subpoena is overbroad to the extent that it does not limit the documents requested to subject matter relevant to the claims or defenses in McIntosh and imposes an undue burden on the Rigsbys. “A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R.Civ.P. 45(c)(1). A court must quash or modify a subpoena that subjects a person to an undue burden. Fed. R. Civ. P. 45(c)(3)(A)(iv). When a non-party claims that a subpoena is burdensome and oppressive, the non-party must support its claim by showing how production would be burdensome. Vaughan Furniture Co. v. Featureline Mfg., Inc., 156 F.R.D. 123, 125 (M.D.N.C.1994). A subpoena imposes an undue burden on a party when a subpoena is overbroad. Theofel, 359 F.3d at 1071-72. In Theofel, the defendant sought access to the plaintiffs’ e-mails by" }, { "docid": "18284087", "title": "", "text": "by an attorney ... constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact ____” It is therefore the opinion of the undersigned that the factual allegations contained in the motion may be considered. The thrust of plaintiffs’ motion is that they have complied with the provisions of the Financial Records Privacy Act, but that because of the defendant FNBG’s failure to make available all of the subpoenaed records at the scheduled depositions in November, their ability to depose the witnesses was impaired, and that this resulted in their being ineffective in discovery; that plaintiffs’ attorneys who live and practice in Louisiana incurred considerable expense in attending the November depositions [$1380.83 in travel expense and $3,000.00 additional attorneys fees — per affidavit of plaintiffs’ attorney, Scott Pias, Court File No. 44], In response, the defendant FNBG contends that it has attempted in good faith to comply with the discovery requests and has produced all the requested documents (at considerable expense) except those protected by the Tennessee Financial Records Privacy Act; that some misunderstanding between the defendant and its counsel resulted in its failure to produce the excepted documents. The defendant contends that the plaintiffs have not fully complied with the Tennessee Act and ask for a Protective Order requiring the plaintiffs to post a bond for costs incident to the subpoenas pursuant to Tenn.Code Ann. § 45-10-108. It also asks that it be protected from undue burden or expense resulting from the production of the requested documents. The defendant contends that plaintiffs have refused to reimburse it for the costs incurred to date for the production of the documents which are kept on microfilm and costly to reproduce in readable form. See Rule 34, Federal Rules of Civil Procedure. The defendant also requests protection prohibiting disclosure of information relating to accounts of its banking customers to third parties. It appears that much of the controversy stems from the defendant FNBG’s reliance on the aforementioned Tennessee" }, { "docid": "19023336", "title": "", "text": "asserts that there is no such “Superfund file,” but rather only copies of “court papers and correspondence between counsel arising out of this matter, all of which presumably are in the possession [of defendants].” (Filing 13, Murtagh Aff., at ¶ 36.) If Hastings has documents responsive to the subpoena, it must produce them, whether or not they reside in a “Superfund file,” since no privilege has been asserted. B. Instructions not to answer deposition questions Defendants next seek to compel answers to deposition questions concerning the “post-1983” documents and “[ejnvironmental filings, reports and communications” discussed above. At various points in the deposition, Hastings’ counsel instructed its designee— Richard Hartsock — not to answer certain questions pertaining to these documents. (See Defendants’ Brief, at 17-23; Defendants’ Exh. 4, at 160-63; 113-15.) Hastings argues that Hartsock “attempted, at all times ... to provide as complete and as detailed answers as he was able.” (Filing 13, Mu-rtagh Aff., at ¶8.) As the Fourth Circuit decided in a case well before the 1993 Amendments to Fed.R.Civ.P. 30: The questions put to Wagnon were germane to the subject matter of the pending action and therefore properly within the scope of discovery. They should have been answered and, in any event, the action of plaintiffs counsel in directing the deponent not to answer was highly improper. The Rule itself says “Evidence objected to shall be taken subject to the objections”, and Professor Wright says it means what it says, citing Shapiro v. Freeman, D.C.N.Y.1965, 38 F.R.D. 308, for the doctrine: “Counsel for party had no right to impose silence or instruct witnesses not to answer and if he believed questions to be without scope of orders he should have done nothing more than state his objections.” Wright & Miller, Federal Practice and Procedure: Civil § 2113 at 419, n. 22 (1970). We agree. If plaintiffs counsel had any objection to the questions, under Rule 30(c) he should have placed it on the record and the evidence would have been taken subject to such objection. If counsel felt that the discovery procedures were being conducted in bad" }, { "docid": "18016685", "title": "", "text": "an Order to Show Cause seeking to quash the subpoenas on procedural and substantive grounds. On July 11, 1995, Judge Eisenberg denied the motion to quash and “made it quite clear that the Defendant’s counsel had no legal standing to object to the subpoena served upon Bear Stearns.” Id. at 34. The Court added that the documents requested of Dubrowsky’s wife, who was also represented by Warner, were to be produced within ten days. Despite the court’s direction, Dubrowsky’s wife failed to produce the items. On September 11, 1995 a hearing was held that revealed that Dubrowsky’s income from Outer Town Apparel had been deposited in his wife’s account. Dubrow-sky’s wife failed to produce the documents as to this occurrence. In addition, it was revealed that Warner had redacted certain portions of a loan application from Prudential which evidenced Dubrowsky’s net worth. Also, it was revealed at the hearing that Dubrowsky and his wife failed to produce 99 checks from the Prudential account. Pursuant to Bankruptcy Rule 9011, with regard to Dubrowsky, Judge Eisenberg imposed a sanction in the sum of $5,000 for the omissions in the bankruptcy petition and schedules which have previously been discussed. In addition, pursuant to Bankruptcy Rule 9011, Judge Eisenberg sanctioned Dubrowsky for the unreasonable delays associated with the discovery requests. Judge Eisenberg held that “[t]he documents which were withheld and subsequently turned over turned out to be some of the most dispositive regarding the Debt- or’s culpability. The only purpose for failing to comply with discovery appears to have been to delay and obfuscate the proceedings.” Id. at 38. As such, Judge Eisenberg awarded the plaintiff the sum of $19,825, representing the legal fees incurred in connection with the discovery disputes. With regard to Warner, Judge Eisen-berg held that his actions “were sufficiently egregious to warrant sanctions under 28 U.S.C. § 1927.” Id. at 39. The court’s decision was based on Warner: (1) disregarding Judge Eisenberg’s discovery directives; (2) attempting to quash a subpoena served on a third party he did not represent; and (3) withholding important and relevant documents requested by the plaintiff." }, { "docid": "7207484", "title": "", "text": "ROBERT P. PATTERSON, JR., District Judge. Defendants Elizabeth Lieberman and Harold Lieberman move for an order quashing deposition subpoenas duces tecum served by plaintiff on 12 nonparty institutions, primarily banks, for records relating to defendants or members of their family, or in the alternative, limiting the scope of the subpoenas, on the grounds that the records sought are (a) not relevant to the pending action, and (b) threaten the privacy interests of defendants. The motion was heard on January 23, 1990. At that time, plaintiff, counsel for moving defendants and counsel for Bank Leumi Le Israel, one of the subpoenaed banks, requested to be heard. Plaintiff is proceeding pro se in this case. At the hearing, counsel for Bank Leumi Le Israel informed the Court and plaintiff that his client had no branches in New York State, but that its affiliate, Bank Leumi Trust Company, conducted banking business in New York State. Plaintiff agreed that, in light of these facts, Bank Leumi Le Israel would not have the materials she was seeking. Accordingly, plaintiff agreed to withdraw the subpoena addressed to Bank Leumi Le Israel and to serve a new subpoena on Bank Leumi Trust Company. With respect to the remaining 11 subpoenas, the first issue is whether the moving defendants have standing to object to the issuance of subpoenas against non-parties. “Ordinarily a party has no standing to seek to quash a subpoena to one who is not a party unless the party claims some personal right or privilege with regard to the documents sought.” 9 Wright & Miller, Federal Practice and Procedure § 2457 (1971). The moving defendants argue that they have personal privacy rights in the records sought by plaintiff. This claim is sufficient to give them standing to pursue their present motion. The Court finds, however, that whatever privacy interests the moving defendants have in the material sought do not so outweigh the plaintiffs right to pursue relevant material that the subpoenas must be quashed. Instead, in view of the policies underlying the Right to Financial Privacy Act of 1978, 12 U.S.C. § 3401 et seq.," } ]

[ { "docid": "5799085", "title": "", "text": "issue on which the court did not previously rule, which is raised by defendant’s motion for summary judgment, is whether defendant is entitled to summary judgment on plaintiff’s claim that defendant willfully violated the overtime compensation provision of the FLSA. A finding of a willful violation would invoke a three-year statute of limitations for which period back wages may be sought, as opposed to the two-year limitations period that normally applies. 29 U.S.C. § 255(a). A finding of willfulness may also entitle plaintiffs to an award of liquidated damages. 29 U.S.C. § 216(a). It is now well-settled that to prove a willful violation of the FLSA within the meaning of section 255(a), it must be established that “the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute.” McLaughlin v. Richland Shoe Co., 486 U.S. 128, 138, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988); Reich v. Waldbaum, Inc., 52 F.3d at 39. Thus, if an employer acts unreasonably, but not recklessly, in determining its legal obligation, its actions will not be considered willful. Reich v. Waldbaum, Inc., 52 F.3d at 39. The court has already determined that the plaintiffs were paid on a salaried basis. While the court has found a genuine issue of material fact as to whether plaintiffs were administrative employees for purposes of the “duties test,” the court has not determined that defendant is liable for overtime pay. Obviously, a finding of a willful violation must be predicated on a finding of a violation. Additionally, from January, 1994, to October, 1994, the Department of Labor audited and investigated defendant’s overall compliance with the FLSA and eventually found that approximately 1,350 of the 5,500 employees classified as salaried exempt did not pass the “duties” test. As a result, defendant agreed to pay approximately $7 million in back overtime wages. It appears from the material before the court that the Department reviewed the classifications held by plaintiffs and did not find a violation. While this determination is not binding on the court, it does have relevance to the issue of" } ]

[ { "docid": "2138904", "title": "", "text": "Court easily finds that Ethelberth was not an independent contractor under New York law. . Though the Court only determines Defendants' liability to pay overtime under the NYLL, the Court notes that the correct rate is based on the rate actually paid to Ethelberth for normal, non-overtime hours. See Brown, 2007 WL 2461823, at *2 (citing Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945)). . It bears repeating that, contrary to the language of the Amended Complaint, Ethel-berth is not seeking both unpaid straight wages and overtime pay in his NYLL or FLSA causes of action; rather, Ethelberth is only seeking overtime pay, pursuant to NYLL § 650 et seq., in Count Three, and overtime pay, pursuant to the FLSA, in Count Four. The Court construes Count Two as seeking straight time wages, pursuant to NYLL § 220, based on Ethelberth's citation of that provision. . Ethelberth argues that he may maintain arguments in the alternative, but the Court notes that its grant of summary judgment -in Ethelberth's favor with respect to Defendants’ liability for overtime compensation under the NYLL makes the need to maintain claims in the alternative moot. See Kaur, 643 F.Supp.2d at 297 (allowing plaintiffs to maintain common law claims in the alternative to the FLSA claim because \"those claims would only be adjudicated if the FLSA and contract claims were dismissed and there was no adequate remedy at law.”). . The dismissal of Ethelberth's NYLL claim for straight time wages in Count Two, due to his failure to exhaust administrative remedies, does not bar him from recovering unpaid prevailing rate wages under a breach of contract theory, so long as he pleads his breach of contract claim as a third-party beneficiary of Choice’s contract with New York City. See, e.g., Sobczak v. AWL Industries, Inc., 540 F.Supp.2d 354, 360-61 (E.D.N.Y.2007) (noting that in contrast to federal law, New York’s prevailing rate wage laws were not intended to require resolution of a plaintiff’s wage claims exclusively through the administrative process and thus do not bar recovery to a plaintiff" }, { "docid": "2138885", "title": "", "text": "the “prevailing wage rate.” (PI. Opp. at ECF 25-26). The Second Circuit has not squarely addressed whether common law claims for overtime are preempted by the FLSA. Kaur v. Royal Arcadia Palace, Inc., 643 F.Supp.2d 276, 297 (E.D.N.Y. 2007) (noting “law is unsettled as to whether the FLSA preempts state common law claims”). However, courts in the Second Circuit have allowed common law claims for straight time compensation to go forward so long as they are not premised on the same facts as the FLSA claim. See Acevedo v. WorkFit Med. LLC, No. 14-CV-06221, 2014 WL 4659366, at *14 (W.D.N.Y. Sept. 17, 2014) (finding state common law claims preempted with respect tó overtime wages but allowing claims seeking unpaid straight time compensation to proceed); Kaur, 643 F.Supp.2d at 297 (dismissing portion of common law claim premised on facts underlying the FLSA claim); see also Wilk v. VIP Health Care Servs., Inc., No. 10 CIV. 5530, 2012 WL 560738, at *4 (E.D.N.Y. Feb. 21, 2012) (allowing breach of contract claim to go forward at motion to dismiss stage, given that complaint was not clear whether that claim sought both overtime and straight time). When considering whether the statutory claims and the common law claims are duplicative, the courts analyze “whether the FLSA and common law claims are grounded in the same facts.” Chen v. Street Beat Sportswear, Inc., 364 F.Supp.2d 269, 292-293 (E.D.N.Y.2005). Based on the Amended Complaint and Ethelberth’s pleadings, it is possible to construe Ethelberth’s common law claims as seeking wages for both overtime and straight time. Ethelberth’s breach of contract claim (Count One) generally seeks the payment of “wages due and owing to [Ethelberth].” (Am. Compl., ¶ 31). Ethel-berth’s unjust enrichment claim (Count Five) explicitly seeks “wages and overtime pay for services rendered by Plaintiff to Defendants.” (Am. Compl., ¶ 68). To the extent Ethelberth’s common law claims seek recovery of overtime wages, such, claims are premised on the same facts underlying Counts Three and Four of the Amended Complaint, which plead causes of action for overtime wages under the NYLL and FLSA respectively. Thus, Ethelberth’s common law" }, { "docid": "2138875", "title": "", "text": "to pay overtime under, the FLSA. Furthermore, the Court finds that there are also disputed issues of material fact on the issue of Defendants’ knowledge or reckless disregard of their obligation to pay overtime under the FLSA. At a minimum, a reasonable jury could find that the evidence regarding Choice’s decision to designate and treat Ethelberth as an independent contractor when performing work at non-SCA and some SCA sites that would otherwise entitle the guards to receive overtime pay establishes Choice’s willful conduct to avoid compliance with federal and State statutory pay requirements. Indeed, Om-ogun’s statements that he prohibited. Choice’s guards from working more than 40 hours per week to avoid paying them overtime, while simultaneously deploying Ethelberth to work as an “independent contractor” after he accumulated his weekly 40 hours, could be viewed as powerful evidence by the jury of such knowledge or reckless disregard. Still, Omogun asserts that Ethelberth made an arrangement to be treated as an independent contractor with Onah, not with Omogun, thus creating a disputed issue of fact. (Defs. Opp. at ECF 7-8). Accordingly, the Court denies summary judgment to both parties on the issue of Choice’s willfulness and the applicable statute of limitations. V. New York Labor Law Claims Ethelberth moves for summary judgment on Counts Two and Three of the Amended Complaint. Count Two seeks unpaid wages under Article 6 of NYLL, NYLL § 190 et seq. (Am. Compl., ¶¶ 33-44; PL MSJ Memo at ECF 29-30). Count Three seeks payment of overtime wages under New York’s Minimum Wage Act, codified at NYLL § 650 et seq., and associated regulations. (Am. Compl., ¶¶ 45-55; PI. MSJ Memo at ECF 28-29). Defendant opposes Ethelberth’s motion for summary judgment on these claims, and cross-moves for a finding that Ethelberth is barred by his failure to exhaust administrative remedies under New York’s provisions applicable to building service employees. (Defs. Opp. at ECF 10-12; Defs. MSJ Memo at ECF 11-14). The Court turns first to Defendants’ argument on exhaustion of administrative remedies. A. Exhaustion of Administrative Remedies Depending upon the nature of a plaintiffs claim under the" }, { "docid": "2138903", "title": "", "text": "related provisions, which apply to building service employees. The Court finds it more appropriate to read Count Two consistently with Ethelberth's citation to NYLL § 220. . Unlike Ethelberth’s FLSA claim, Defendants do not attempt to defeat Ethelberth’s NYLL claim for overtime by arguing that he was an independent contractor. To the extent Defendants did not intend to waive this argument, the Court briefly considers whether Ethelberth was an employee of Choice at all times under state law. In contrast to the federal economic reality test, New York focuses on the \"degree of control exercised by the purported employer.\" See Velu v. Velocity Express, Inc., 666 F.Supp.2d 300, 307 (E.D.N.Y.2009). \"The critical inquiry in determining whether an employment relationship exists pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results.” Bynog v. Cipriani Group, Inc., 1 N.Y.3d 193, 198, 770 N.Y.S.2d 692, 802 N.E.2d 1090 (2003). Due to Choice’s control over Ethelberth’s work assignments, schedule, and wages, see supra at 350-51, the Court easily finds that Ethelberth was not an independent contractor under New York law. . Though the Court only determines Defendants' liability to pay overtime under the NYLL, the Court notes that the correct rate is based on the rate actually paid to Ethelberth for normal, non-overtime hours. See Brown, 2007 WL 2461823, at *2 (citing Walling v. Youngerman-Reynolds Hardwood Co., 325 U.S. 419, 424, 65 S.Ct. 1242, 89 L.Ed. 1705 (1945)). . It bears repeating that, contrary to the language of the Amended Complaint, Ethel-berth is not seeking both unpaid straight wages and overtime pay in his NYLL or FLSA causes of action; rather, Ethelberth is only seeking overtime pay, pursuant to NYLL § 650 et seq., in Count Three, and overtime pay, pursuant to the FLSA, in Count Four. The Court construes Count Two as seeking straight time wages, pursuant to NYLL § 220, based on Ethelberth's citation of that provision. . Ethelberth argues that he may maintain arguments in the alternative, but the Court notes that its grant of summary judgment -in" }, { "docid": "2138873", "title": "", "text": "the statute of limitations applicable to Ethelberth’s FLSA claim. Defendants seek dismissal of Ethelberth’s claim as being outside the FLSA’s two-year statute of limitations. (Defs. MSJ Memo at ECF 13-14). Ethelberth, however, argues that Defendants willfully violated the FLSA and therefore the applicable statute of limitations is three years. (PI. Opp. at ECF 19; Dkt. 56 (Plaintiffs Reply In Support of Partial Summary Judgment (“PI. MSJ Reply”)) at ECF 8-9). The applicable statute of limitations is based on a factual determination regarding Choice’s knowledge or reckless disregard of the fact that they were legally required to pay overtime to Ethelberth for the work he performed beyond 40 hours each week. See McLaughlin v. Richland Shoe Co., 486 U.S. 128, 133, 135, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988) (establishing that willfulness, for purposes of applying FLSA’s three-year statute of limitation, requires that “the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by the statute”); Young v. Cooper Cameron, 586 F.3d 201, 207 (2d Cir.2009) (applying McLaughlin “willfulness” standard); Eschmann v. White Plains Crane Service, Inc., 11-CV-5881, 2014 WL 1224247, at *5 (Mar. 24, 2014 E.D.N.Y.) (“district courts in this circuit have generally left the question of willfulness to the trier of fact... .When courts have decided the question of willfulness ■ at the summary judgment stage, either the ‘FLSA violation was due to a misclassification of the plaintiff as being exempt,’ or there existed no genuine dispute that the employer had been on notice that it was subject to the FLSA.”) (citations omitted). Whether that factual determination is made at the summary judgment phase or at trial depends on whether there are disputed material facts regarding at least two issues: (1) Choice’s obligation to pay Ethelberth overtime under the FLSA, and if so, (2) Choice’s knowl edge or reckless disregard of their obligation to do so. As the Court previously found, there are material facts in dispute about Choice’s enterprise coverage under the FLSA, which may be dispositive of the first issue and this action, ie., whether Choice is covered by, and obligated" }, { "docid": "2138894", "title": "", "text": "action. SO ORDERED. . Plaintiff’s Amended Complaint is not a model of clarity or precision. Although Ethel- berth purports to seek “wages and overtime” in both Counts Two and Three (Dkt. 17 ¶¶ 38, 40-43, 49-52 (emphasis added)), as discussed infra, his motion papers purport to seek only overtime wages in Count Three. (Dkt. 49, (Plaintiff's Memo in Support of Summary Judgment (\"PI. MSJ Memo”), at ECF 26-27) (\"ECF” refers to the pagination generated by the Court’s electronic docketing system and not the document's internal pagination)). Ethelberth appears to continue to seek straight time wages and overtime pay in Count Two, but the sum of his summary judgment briefing on this count is only three paragraphs. (PI. MSJ Memo at ECF 29-30). As further explained below, because the Court is granting Ethelberth summary judgment as to his overtime claim under New York law in Count Three, the Court construes Count Two as seeking straight time wages and does not address his duplicative overtime claim under New York law in Count Two. (See Section V, infra.) . Notably, despite alleging a violation of NYLL § 190 etseq. in his Amended Complaint (Count Two), Ethelberth relies on NYLL § 220 as the basis for his claim in his motion papers. .Because the parties have cross-moved for summary judgment, there are four factual statements before the Court: Defendants’ 56.1 Statement in Support of Summary Judgment (\"Defs. 56.1”); Plaintiff's Opposition to Defendants’ 56.1 Statement in Support of Summary Judgment (\"Pl. 56.1 Opp.”); Plaintiff's 56.1 Statement in Support of Summary Judgment (\"PI. 56.1”); and Defendants’ Opposition to Defendants’ 56.1 Statement in Support of Summary Judgment (\"Defs. 56.1 Opp.”). Unless otherwise noted, a standalone citation to a 56.1 Statement denotes that this Court has deemed the underlying factual allegation undisputed. Any citations to a party's 56.1 Statement incorporates by reference the documents cited therein. Where relevant, however, the Court may cite directly to underlying documents. . Defendants submitted two versions of this affidavit, one supporting Defendants’ Motion for Summary Judgment at Dkt. 71 and one opposing Plaintiff’s Motion for Summary Judgment at Dkt. 84. They are" }, { "docid": "2138840", "title": "", "text": "MEMORANDUM & ORDER PAMELA K. CHEN, District Judge: Plaintiff Onyenaemeka Ethelberth (“Ethelberth”) initiated this suit against his former employer, Defendants Choice Security Company, Choice Group, Inc., Choice Security Services, Inc., Choice Security Services, Choice Security Co. (collectively, “Choice”), and Choice’s president, George Omogun, to recover unpaid wages and overtime compensation. Ethel-berth, who formerly worked as an unarmed security guard for Choice, asserts that Defendants failed to pay him overtime compensation in violation of the Fair Labor Standards Act, 29 U.S.C. § 201 et seq., and the New York Labor Law (“NYLL”), N.Y. Lab. Law § 650 et seq. Ethelberth also asserts claims based on Defendants’ alleged underpayment of his “straight time” (non-overtime) compensation, pursuant to NYLL § 190 et seq. and common law theories of breach of contract and unjust enrichment. Defendants move for summary judgment on all claims in the Amended Complaint, asserting that (i) any “overtime” hours worked by Ethelberth were performed as an independent contractor for Choice; (ii) Defendant Omogun cannot be held individually liable as an employer; (in) Defendants are not covered employers under the FLSA; (iv) the FLSA’s statute of limitations bars Ethelberth’s claim; (v) Ethelberth’s breach of contract and unjust enrichment claims are duplicative of his claims under the FLSA and the NYLL; (vi) Ethelberth failed to exhaust his administrative remedies and- cannot bring a claim for “prevailing wages” under the NYLL; and (vii) in the event Ethelberth’s FLSA claims are dismissed, the Court should decline to exercise supplemental jurisdiction over his State law claims, as to which there is also no diversity jurisdiction. (Dkt. 62 (Defendants’ Motion for Summary Judgment)). Ethelberth opposes Defendants’ motion and cross-moves for summary judgment as to Defendants’ liability under the FLSA, NYLL and common law. Ethelberth asserts that: (i) all hours worked by Ethel-berth for Choice were as a Choice employee and not as an independent contractor; (ii) Omogun may be held individually liable as an employer; (iii) Defendants qualify for enterprise coverage under the FLSA; (iv) Defendants’ violation of the FLSA was willful, thereby extending the statute of limitations from two to three years; (v) Ethelberth’s breach" }, { "docid": "2138898", "title": "", "text": "as he was aware of the conduct that forms the basis of Ethelberth’s current lawsuit. . As previously noted, despite asserting in their moving papers that Choice’s uniforms are manufactured in Long Island City, Choice does not provide any evidence to support this assertion. (Defs. MSJ Reply at ECF 13 (citing Defs. 56.1 Opp., ¶ 10)). While Choice’s failure to proffer supporting evidence for their claim about the out-of-state manufacture of the uniforms could be likened to Ethelberth's failure to produce evidence to support his claim that the supplies and equipment he guarded over at job sites were manufactured out-of-state (supra at 354-55), the Court sees a critical difference. Because Choice purchased the uniforms regularly over the course of years, and may still purchase the same uniforms now, Choice’s claim regarding the source of the uniforms carries more weight than Ethelberth’s generic claim about items that he had only fleeting contact with years ago, and as to which he has no basis for knowing their origins. . FLSA provides for a two-year statute óf limitations, unless the employer's conduct is “willful/' in which case, a three-year statute of limitations applies. 29 U.S.C. § 255(a). If Ethelberth cannot establish willfulness and thereby avail himself of the three-year statute of limitations, 'his FLSA claim will be barred. (See Defs. Opp. at ECF 7 n. 3 (noting a two-year statute of limitations would limit Ethel-berth’s claims to September 28, 2010 but that Ethelberth left Choice in June 2010)). . Because the issue of whether an employer is covered by the FLSA may be dispositive of the entire action, some courts have deferred ruling on the applicable statute of limitations at the summary judgment stage where there exist disputed issues of fact on this threshold issue. See, e.g., Cooke v. General Dynamics Corp., 993 F.Supp. 56, 65-66 (D.Conn.1997) (deferring ruling on whether defendants willfully violated the FLSA due to outstanding issues regarding whether defendants violated the FLSA in the first place). . As discussed supra in footnote 1, although Counts Two and Three both purport to seek unpaid straight time wages and overtime, Ethelberth's" }, { "docid": "2138886", "title": "", "text": "dismiss stage, given that complaint was not clear whether that claim sought both overtime and straight time). When considering whether the statutory claims and the common law claims are duplicative, the courts analyze “whether the FLSA and common law claims are grounded in the same facts.” Chen v. Street Beat Sportswear, Inc., 364 F.Supp.2d 269, 292-293 (E.D.N.Y.2005). Based on the Amended Complaint and Ethelberth’s pleadings, it is possible to construe Ethelberth’s common law claims as seeking wages for both overtime and straight time. Ethelberth’s breach of contract claim (Count One) generally seeks the payment of “wages due and owing to [Ethelberth].” (Am. Compl., ¶ 31). Ethel-berth’s unjust enrichment claim (Count Five) explicitly seeks “wages and overtime pay for services rendered by Plaintiff to Defendants.” (Am. Compl., ¶ 68). To the extent Ethelberth’s common law claims seek recovery of overtime wages, such, claims are premised on the same facts underlying Counts Three and Four of the Amended Complaint, which plead causes of action for overtime wages under the NYLL and FLSA respectively. Thus, Ethelberth’s common law claims seeking recovery of overtime compensation are dismissed as duplicative. See Chen, 364 F.Supp.2d at 293 (finding plaintiffs’ negligence claim to be premised on the same facts of their FLSA claim and therefore dismissing the negligence claims as dupli-cative). However, Ethelberth’s common law claims seeking recovery of straight time compensation remain viable. Ethel-berth argues that Defendants failed to pay him the prevailing minimum wage rate under NYLL § 220 at certain SCA project sites, and that this was done in breach of an agreement between the parties. (PI. MSJ Memo at EOF 14-15). The facts at issue with regard to Ethelberth’s straight time compensation thus differ from those underlying his claims for overtime. See Kaur, 643 F.Supp.2d at 297 (finding plaintiffs’ claim for fraud not premised on the same facts as the FLSA claim and therefore not duplicative). Because Counts Three and Four of the Amended Complaint seek recovery of overtime compensation only and because Count Two of the Amended Complaint seeking straight time wages has been dismissed, Ethelberth’s common law claims are not duplicative" }, { "docid": "2138899", "title": "", "text": "unless the employer's conduct is “willful/' in which case, a three-year statute of limitations applies. 29 U.S.C. § 255(a). If Ethelberth cannot establish willfulness and thereby avail himself of the three-year statute of limitations, 'his FLSA claim will be barred. (See Defs. Opp. at ECF 7 n. 3 (noting a two-year statute of limitations would limit Ethel-berth’s claims to September 28, 2010 but that Ethelberth left Choice in June 2010)). . Because the issue of whether an employer is covered by the FLSA may be dispositive of the entire action, some courts have deferred ruling on the applicable statute of limitations at the summary judgment stage where there exist disputed issues of fact on this threshold issue. See, e.g., Cooke v. General Dynamics Corp., 993 F.Supp. 56, 65-66 (D.Conn.1997) (deferring ruling on whether defendants willfully violated the FLSA due to outstanding issues regarding whether defendants violated the FLSA in the first place). . As discussed supra in footnote 1, although Counts Two and Three both purport to seek unpaid straight time wages and overtime, Ethelberth's summary judgment briefing makes clear that he is only seeking overtime pursuant to Count Three, which pleads a cause of action under NYLL § 650 et seq. (the New York Minimum Wage Act). (PL Memo at ECF 26-28). Although Ethelberth continues to seek both straight time wages and overtime under Count Two, which pleads a cause of action under Article 6 of the New York Labor Law, the Court need not, and does not, address the duplicative overtime claim in Count Two because of the Court’s decision to grant summary judgment to Ethel-berth on his overtime claim in Count Three. In addition, because Ethelberth currently seeks summary judgment only as to Defen-’ dants’ liability, the Court need not address his claims for liquidated damages, pre-judgment interest, and attorneys' fees and costs in both counts at this time. .New York’s overtime requirement is codified in its regulations: “An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate in the manner and methods provided in and" }, { "docid": "2138883", "title": "", "text": "651(6), the Court easily finds that Choice is an employer for purposes of the New York Minimum Wage Act. The Court also finds that Omogun may be held individually liable for Ethelberth’s claim for overtime under the NYLL. As the Second Circuit recognized in Irizarry, the New York Court of Appeals has not yet answered the question of whether the FLSA’s test for “employer” is the same as for the NYLL. Irizarry, 722 F.3d at 117. Nevertheless, the Court notes that districts in this Circuit “have consistently interpreted the definition of ‘employer’ under the New York Labor Law coexten-sively with the definition used by the FLSA.” Yu Y. Ho v. Sim Enterprises, Inc., No. 11-CV-2855, 2014 WL 1998237, at *10 (S.D.N.Y. May 14, 2014) (citing Moon v. Kwon, 248 F.Supp.2d 201, 236 n. 17 (S.D.N.Y.2002)). The Court finds no reason to depart from this interpretation. Having found that Omogun was an employer under the FLSA, the Court finds that Omogun also qualifies as an employer under the New York Minimum Wage Act. Having resolved the threshold questions of liability in Ethelberth’s favor, the Court finds that there is no dispute of fact regarding Defendants’ failure to pay Ethel-berth overtime compensation at a rate of one and one-half times his regular wage. See Section IV, supra. Accordingly, the Court grants summary judgment to Ethel-berth with respect to his claim for overtime pay in Count Three of the Amended Complaint. VI. Common Law Claims for Breach of Contract and Unjust Enrichment A. Whether Ethelberth’s Common Law Claims are Duplicative Defendants seek dismissal of Ethel-berth’s common law claims for breach of contract (Count One) and unjust enrichment (Count Five), arguing that these claims are duplicative of Ethelberth’s FLSA and NYLL claims. In Defendants’ view, Ethelberth’s state common law claims are duplicative because they “are premised squarely on violations of the FLSA and NYLL and not upon some other agreement between the parties.” (Defs. MSJ Memo at ECF 8-11). Ethelberth opposes, arguing that he may maintain claims in the alternative and that such claims are based on Defendants’ promise that he would be paid" }, { "docid": "2138884", "title": "", "text": "threshold questions of liability in Ethelberth’s favor, the Court finds that there is no dispute of fact regarding Defendants’ failure to pay Ethel-berth overtime compensation at a rate of one and one-half times his regular wage. See Section IV, supra. Accordingly, the Court grants summary judgment to Ethel-berth with respect to his claim for overtime pay in Count Three of the Amended Complaint. VI. Common Law Claims for Breach of Contract and Unjust Enrichment A. Whether Ethelberth’s Common Law Claims are Duplicative Defendants seek dismissal of Ethel-berth’s common law claims for breach of contract (Count One) and unjust enrichment (Count Five), arguing that these claims are duplicative of Ethelberth’s FLSA and NYLL claims. In Defendants’ view, Ethelberth’s state common law claims are duplicative because they “are premised squarely on violations of the FLSA and NYLL and not upon some other agreement between the parties.” (Defs. MSJ Memo at ECF 8-11). Ethelberth opposes, arguing that he may maintain claims in the alternative and that such claims are based on Defendants’ promise that he would be paid the “prevailing wage rate.” (PI. Opp. at ECF 25-26). The Second Circuit has not squarely addressed whether common law claims for overtime are preempted by the FLSA. Kaur v. Royal Arcadia Palace, Inc., 643 F.Supp.2d 276, 297 (E.D.N.Y. 2007) (noting “law is unsettled as to whether the FLSA preempts state common law claims”). However, courts in the Second Circuit have allowed common law claims for straight time compensation to go forward so long as they are not premised on the same facts as the FLSA claim. See Acevedo v. WorkFit Med. LLC, No. 14-CV-06221, 2014 WL 4659366, at *14 (W.D.N.Y. Sept. 17, 2014) (finding state common law claims preempted with respect tó overtime wages but allowing claims seeking unpaid straight time compensation to proceed); Kaur, 643 F.Supp.2d at 297 (dismissing portion of common law claim premised on facts underlying the FLSA claim); see also Wilk v. VIP Health Care Servs., Inc., No. 10 CIV. 5530, 2012 WL 560738, at *4 (E.D.N.Y. Feb. 21, 2012) (allowing breach of contract claim to go forward at motion to" }, { "docid": "2138896", "title": "", "text": "the same affidavit except with respect to paragraphs 38-39 in Dkt. 84, which are not present in Dkt. 71. For simplicity’s sake, the Court will refer to the Omogun Affidavit filed at Dkt. 84. . Defendants dispute the end date of Ethel-berth’s employment, arguing that he last worked for Choice in March 2010. (Defs. 56.1 Opp., ¶ 21). However, because Defendants’ records for Ethelberth show that he worked through June 2010, the Court accepts Plaintiff's end date of June 2010. (See PI. Ex. 35). . Plaintiffs Exhibit 37 provides the prevailing wage schedules applicable to Ethelberth’s time of employment. It shows that the prevailing minimum wage under New York law for an unarmed security guard in building services was $10.00 per hour from 7/1/2007 through 6/30/2008, $11.35 per hour from 7/1/2008 through 6/30/2009, and then varied between $11.25 and $13.25, depending on experience, from 7/1/2009 through 6/30/2010. (Dkt. 51, Pl. Ex. 37 (ranging from $11.25 for 0-6 months of experience to $13.25 for more than 24 months of experience)), . IRS Form 1099s are entitled \"Miscellaneous Income,” and report income earned by individuals as independent contractors during a given tax year. . Although asserting that the uniforms were \"manufactured ... in Long Island City, New York”, Choice does not provide any evidence supporting that assertion. (Defs. MSJ Reply at ECF 13 (citing Defs. 56.1 Opp., ¶ 10)). . Ethelberth urges the Court to strike Defendants’ opposition papers due to late service. (PL MSJ Reply at ECF 6;' see also Dkt. 57). The Court declines to do so because the delay did not even amount to a full day, and did not prejudice Ethelberth. . Despite the references to \"wages and overtime” in Count Four of his complaint (Dkt. 1 ¶¶ 60-65), Ethelberth’s moving papers make clear that he is only asserting a FLSA violation with respect to overtime pay, and not straight time wages. (See PL MSJ Memo at ECF 25 (\"Plaintiff is entitled to partial summary judgment on his claim for overtime pay.”)). . This fact alone strongly supports a finding that Omogun should be subject to employer liability," }, { "docid": "2138900", "title": "", "text": "summary judgment briefing makes clear that he is only seeking overtime pursuant to Count Three, which pleads a cause of action under NYLL § 650 et seq. (the New York Minimum Wage Act). (PL Memo at ECF 26-28). Although Ethelberth continues to seek both straight time wages and overtime under Count Two, which pleads a cause of action under Article 6 of the New York Labor Law, the Court need not, and does not, address the duplicative overtime claim in Count Two because of the Court’s decision to grant summary judgment to Ethel-berth on his overtime claim in Count Three. In addition, because Ethelberth currently seeks summary judgment only as to Defen-’ dants’ liability, the Court need not address his claims for liquidated damages, pre-judgment interest, and attorneys' fees and costs in both counts at this time. .New York’s overtime requirement is codified in its regulations: “An employer shall pay an employee for overtime at a wage rate of one and one-half times the employee's regular rate in the manner and methods provided in and subject to the exemptions of sections 7 and 13 of 29 U.S.C. 201 et seq., the Fair Labor Standards Act of 1938, as amended.” N.Y. Comp.Codes R. & Regs. tit. 12 § 142-2.2. . Article 6 of the NYLL is generally titled \"Payment of Wages.” See NYLL § 190 ef seq. Count Two of the Amended Complaint claims that \"Defendants violated the substantive provisions of the Labor Law, including without limitation Sections 191, 193 and 198.” (See Am. CompL, ¶ 39). NYLL § 191 concerns frequency of payments, NYLL § 193 prohibits certain deductions from wages, and NYLL § 198 allows an employee to recover costs and other remedies for bringing a civil action to recover unpaid wages. Ethelberth’s summary judgment briefing on Count Two, however, does not pul forth evidence on frequency of payments, deductions from wages, or costs and remedies due to Ethelberth. What Ethelberth does assert, however, is that he is due straight time compensation pursuant to the prevailing wage, citing NYLL § 220. (PL 56.1 ¶ 32). That provision is contained" }, { "docid": "2138887", "title": "", "text": "claims seeking recovery of overtime compensation are dismissed as duplicative. See Chen, 364 F.Supp.2d at 293 (finding plaintiffs’ negligence claim to be premised on the same facts of their FLSA claim and therefore dismissing the negligence claims as dupli-cative). However, Ethelberth’s common law claims seeking recovery of straight time compensation remain viable. Ethel-berth argues that Defendants failed to pay him the prevailing minimum wage rate under NYLL § 220 at certain SCA project sites, and that this was done in breach of an agreement between the parties. (PI. MSJ Memo at EOF 14-15). The facts at issue with regard to Ethelberth’s straight time compensation thus differ from those underlying his claims for overtime. See Kaur, 643 F.Supp.2d at 297 (finding plaintiffs’ claim for fraud not premised on the same facts as the FLSA claim and therefore not duplicative). Because Counts Three and Four of the Amended Complaint seek recovery of overtime compensation only and because Count Two of the Amended Complaint seeking straight time wages has been dismissed, Ethelberth’s common law claims are not duplicative of any other surviving statutory claims. ' B. Breach of Contract Ethelberth, however, cannot maintain his breach of contract claim, even as limited to straight time compensation. Eth-elberth claims that he had an oral agreement with Defendants to be paid the prevailing wage rate when he worked at schools (Ethelberth Aff., ¶ 4), and that Defendants’ failure to pay him at such rates breached this agreement. In addition to denying that such an agreement existed (Defs. 56.1, ¶ 25), Defendants argue that Ethelberth cannot pursue a breach of contract claim that is premised on a violation of the NYLL. (Defs. MSJ Memo at ECF 10). The Court examines whether the relevant NYLL provisions bar recovery pursuant to a breach of contract theory. By alleging an agreement for payment based on “prevailing wage rates,” Ethel-berth’s breach of contract claim is clearly premised on a violation of the prevailing wage provisions set forth in NYLL § 220. While NYLL § 220 requires exhaustion of administrative remedies prior to pursuing a private right of action under the NYLL," }, { "docid": "2138897", "title": "", "text": "\"Miscellaneous Income,” and report income earned by individuals as independent contractors during a given tax year. . Although asserting that the uniforms were \"manufactured ... in Long Island City, New York”, Choice does not provide any evidence supporting that assertion. (Defs. MSJ Reply at ECF 13 (citing Defs. 56.1 Opp., ¶ 10)). . Ethelberth urges the Court to strike Defendants’ opposition papers due to late service. (PL MSJ Reply at ECF 6;' see also Dkt. 57). The Court declines to do so because the delay did not even amount to a full day, and did not prejudice Ethelberth. . Despite the references to \"wages and overtime” in Count Four of his complaint (Dkt. 1 ¶¶ 60-65), Ethelberth’s moving papers make clear that he is only asserting a FLSA violation with respect to overtime pay, and not straight time wages. (See PL MSJ Memo at ECF 25 (\"Plaintiff is entitled to partial summary judgment on his claim for overtime pay.”)). . This fact alone strongly supports a finding that Omogun should be subject to employer liability, as he was aware of the conduct that forms the basis of Ethelberth’s current lawsuit. . As previously noted, despite asserting in their moving papers that Choice’s uniforms are manufactured in Long Island City, Choice does not provide any evidence to support this assertion. (Defs. MSJ Reply at ECF 13 (citing Defs. 56.1 Opp., ¶ 10)). While Choice’s failure to proffer supporting evidence for their claim about the out-of-state manufacture of the uniforms could be likened to Ethelberth's failure to produce evidence to support his claim that the supplies and equipment he guarded over at job sites were manufactured out-of-state (supra at 354-55), the Court sees a critical difference. Because Choice purchased the uniforms regularly over the course of years, and may still purchase the same uniforms now, Choice’s claim regarding the source of the uniforms carries more weight than Ethelberth’s generic claim about items that he had only fleeting contact with years ago, and as to which he has no basis for knowing their origins. . FLSA provides for a two-year statute óf limitations," }, { "docid": "2138893", "title": "", "text": "been paid during the relevant time period, the Court cannot definitively determine that Defendants were enriched at Ethelberth’s expense. The Court therefore denies summary judgment to both parties on Ethelberth’s claim for unjust enrichment. VII. Diversity Jurisdiction The Court does not address Defendants’ argument on diversity jurisdiction at this juncture. (Defs. MSJ Memo at ECF 23-24). Given the denial of summary judgment on Ethelberth’s FLSA claim, this Court’s exercise of federal question and supplemental jurisdiction over Ethel-berth’s claims remains proper. CONCLUSION Accordingly, it is hereby ORDERED Plaintiffs and Defendants’ cross-motions for summary judgment are GRANTED IN PART and DENIED IN PART. The Court GRANTS summary judgment to Plaintiff with respect to Defendants’ liability for payment of overtime compensation pursuant to the NYLL. Plaintiffs claims for overtime compensation pursuant to the FLSA and straight time compensation through unjust enrichment will proceed to trial for fact-finding on the issues identified in this opinion. Plaintiffs claims for unpaid wages pursuant to Article 6 of the NYLL (Count Two) and breach of contract (Count One) are DISMISSED from this action. SO ORDERED. . Plaintiff’s Amended Complaint is not a model of clarity or precision. Although Ethel- berth purports to seek “wages and overtime” in both Counts Two and Three (Dkt. 17 ¶¶ 38, 40-43, 49-52 (emphasis added)), as discussed infra, his motion papers purport to seek only overtime wages in Count Three. (Dkt. 49, (Plaintiff's Memo in Support of Summary Judgment (\"PI. MSJ Memo”), at ECF 26-27) (\"ECF” refers to the pagination generated by the Court’s electronic docketing system and not the document's internal pagination)). Ethelberth appears to continue to seek straight time wages and overtime pay in Count Two, but the sum of his summary judgment briefing on this count is only three paragraphs. (PI. MSJ Memo at ECF 29-30). As further explained below, because the Court is granting Ethelberth summary judgment as to his overtime claim under New York law in Count Three, the Court construes Count Two as seeking straight time wages and does not address his duplicative overtime claim under New York law in Count Two. (See Section V, infra.)" }, { "docid": "2138880", "title": "", "text": "that he saw the administrative process to completion. The record thus fails to establish that Ethelberth has exhausted his administrative remedies. See Winsch v. Esposito Building Specialty, 48 A.D.3d 558, 852 N.Y.S.2d 199, 200 (2008) (affirming summary judgment dismissal of NYLL § 220 claim given lack of proof that any administrative determination had been rendered). Nor will the Court permit Ethelberth to circumvent the statutory requirement to exhaust administrative remedies under NYLL § 220 by simply asserting, without providing proof that should be readily available to him, that he has met the exhaustion requirement. The Court, therefore, grants summary judgment to Defendants on Count Two of the Amended Complaint, and dismisses it from this action. 2. Count Three — Exhaustion of Administrative Remedies Ethelberth brings Count Three of the Amended Complaint pursuant to the New York Minimum Wage Act, NYLL § 650 et seq., and therefore is not required to exhaust administrative remedies before doing so. Accordingly, the Court turns to the issue of whether Ethelberth qualifies for overtime under the New York Minimum Wage Act. B. Overtime Wages “New York’s Labor Law is the state analogue to the federal FLSA.” Santillan v. Henao, 822 F.Supp.2d 284, 292 (E.D.N.Y.2011). “Although the Labor Law ‘does not require a plaintiff to show either a nexus with interstate commerce or that the employer has any minimum amount of sales,’ it otherwise mirrors the FLSA in compensation provisions regarding minimum hourly wages and overtime[.]” Id. (citing Chun Jie Yin v. Kim, No. 07-CV-1236, 2008 WL 906736, at *4 (E.D.N.Y. Apr. 1, 2008); N.Y. Lab. Law § 652; N.Y. Comp.Codes R. & Regs. tit. 12 § 142-2.2). Accordingly, courts in the Second Circuit have generally applied their analysis of a plaintiffs FLSA claim to a plaintiffs NYLL claim due to the substantial similarity in the provisions. See Kleitman v. MSCK Mayain Olam Habba Inc., No. 11-CV-2817, 2013 WL 4495671, at *3 (E.D.N.Y. Aug. 20, 2013) (citing Santillan, 822 F.Supp.2d at 293). To recover overtime wages under the New York Minimum Wage Act, Ethelberth must prove that he was an “employee” and that Defendants were “employer[s]”" }, { "docid": "2138892", "title": "", "text": "45 A.D.3d 806, 847 N.Y.S.2d 132 (2007)). “The applicable limitations period begins to runs ‘upon the occurrence of the wrongful act giving rise to a duty of restitution and not from the time the facts constituting the fraud are discovered.’ ” Matana, 957 F.Supp.2d at 494 (quoting Cohen v. S.A.C. Trading Corp., 711 F.3d 353, 364 (2d Cir.2013)). Because Ethelberth seeks monetary relief through the recovery of wages, his claim for unjust enrichment is limited to September 28, 2009, three years from the date he filed this action. Ethelberth asserts that during this period, Defendants paid him “a wage rate for work at Schools of $12 to $15.61, while the prevailing wage rate for Plaintiffs experience level was $17.11.” (PI. 56.1, ¶ 53; PI. Ex. 37). Defendants admit that they are required to pay the mandated minimum wage under the FLSA and the NYLL, but deny that they agreed to pay “any particular wage rate for any particular location.” (Defs. 56.1 Opp., ¶ 53). Given the dispute over the rate at which Ethelberth should have been paid during the relevant time period, the Court cannot definitively determine that Defendants were enriched at Ethelberth’s expense. The Court therefore denies summary judgment to both parties on Ethelberth’s claim for unjust enrichment. VII. Diversity Jurisdiction The Court does not address Defendants’ argument on diversity jurisdiction at this juncture. (Defs. MSJ Memo at ECF 23-24). Given the denial of summary judgment on Ethelberth’s FLSA claim, this Court’s exercise of federal question and supplemental jurisdiction over Ethel-berth’s claims remains proper. CONCLUSION Accordingly, it is hereby ORDERED Plaintiffs and Defendants’ cross-motions for summary judgment are GRANTED IN PART and DENIED IN PART. The Court GRANTS summary judgment to Plaintiff with respect to Defendants’ liability for payment of overtime compensation pursuant to the NYLL. Plaintiffs claims for overtime compensation pursuant to the FLSA and straight time compensation through unjust enrichment will proceed to trial for fact-finding on the issues identified in this opinion. Plaintiffs claims for unpaid wages pursuant to Article 6 of the NYLL (Count Two) and breach of contract (Count One) are DISMISSED from this" }, { "docid": "2138876", "title": "", "text": "at ECF 7-8). Accordingly, the Court denies summary judgment to both parties on the issue of Choice’s willfulness and the applicable statute of limitations. V. New York Labor Law Claims Ethelberth moves for summary judgment on Counts Two and Three of the Amended Complaint. Count Two seeks unpaid wages under Article 6 of NYLL, NYLL § 190 et seq. (Am. Compl., ¶¶ 33-44; PL MSJ Memo at ECF 29-30). Count Three seeks payment of overtime wages under New York’s Minimum Wage Act, codified at NYLL § 650 et seq., and associated regulations. (Am. Compl., ¶¶ 45-55; PI. MSJ Memo at ECF 28-29). Defendant opposes Ethelberth’s motion for summary judgment on these claims, and cross-moves for a finding that Ethelberth is barred by his failure to exhaust administrative remedies under New York’s provisions applicable to building service employees. (Defs. Opp. at ECF 10-12; Defs. MSJ Memo at ECF 11-14). The Court turns first to Defendants’ argument on exhaustion of administrative remedies. A. Exhaustion of Administrative Remedies Depending upon the nature of a plaintiffs claim under the NYLL, he or she may not be required to exhaust administrative remedies before bringing suit for unpaid wages. For claims brought pursuant to Article 6 of the NYLL, exhaustion is not required. See NYLL § 198(3) (“Investigation by the commissioner will not be a prerequisite to nor a bar against a person bringing a civil action under this section”). Nor is exhaustion required before bringing a claim for unpaid wages and overtime pursuant to the New York Minimum Wage Act. See NYLL § 663(1) (recognizing private right of action). However, Article 8 of the NYLL, which applies to public works projects, requires an employee to exhaust administrative remedies before bringing a private right of action. NYLL § 220(8); see Igene v. Miracle Sec., Inc., No. 12-CV-149, 2013 WL 5502868, at *3 (E.D.N.Y. Oct. 2, 2013) (noting plaintiffs claim under NYLL § 220 required exhaustion of administrative remedies). 1. Count Two Count Two of the Amended Complaint purports to assert claims under Article 6 of the NYLL, NYLL § 190 et seq., for unpaid wages, but" } ]

[ { "docid": "12888299", "title": "", "text": "the allegations were true. The EEOC advised Rozen of his right to file suit in the federal district court within ninety days of his receipt of a “right to sue” notice which was to be issued from the Department of Justice. Approximately six weeks later Rozen wrote to the EEOC requesting permission to examine his file and to speak to the Commissioner concerning his case. In this letter Rozen also stated that he was “already under the pressure of time and events to institute suit as soon as possible.” Not until June 28,1980 did Rozen receive his right to sue letter from the Department of Justice. Rozen then, pro se, timely filed this action in the district court. On July 17, 1981 the district court dismissed all counts except one based on Title VII, 42 U.S.C. §§ 2000e et seq. (1976). Defendant thereafter moved to dismiss this remaining count, arguing that the twenty-one month delay between the EEOC decision and the issuance of the right to sue notice was chargeable to Rozen, and that it had been prejudiced by the delay. Defendant thus contended that Rozen’s Title VII count should be dismissed on the ground of laches. The district court agreed. In its November 10, 1981 memorandum opinion, the court held that Rozen had “unreasonably and inexcusably delayed” in filing suit, and that a plaintiff should “be prevented from Tying low’ to his adversary’s disadvantage after he has requested a notice to sue but where one does not issue within a reasonable time.” The court also ruled that defendant had been prejudiced by the delay because a witness and certain employment records were unavailable. This appeal followed. II The defense of laches requires a finding both that the plaintiff delayed inexcusably or unreasonably in filing suit and that the delay was prejudicial to the defendant. Boone v. Mechanical Specialties Co., 609 F.2d 956, 958 (9th Cir.1979); Save Our Wetlands, Inc. v. Army Corps of Engineers, 549 F.2d 1021 (5th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). Although laches may apply to Title VII actions" } ]

[ { "docid": "9919131", "title": "", "text": "that the complainant was driven to quit. 665 F.2d at 1173-74. The district court declined to find constructive discharge in this ease because “plaintiffs have proven neither discrimination nor [based on the same alleged incidents at issue in the retaliation claim] the existence of aggravating factors sufficient to support a finding of constructive discharge.” 602 F.Supp. at 1411. Although the retaliation and constructive discharge claims must be analyzed independently from the promotion claim, the interrelationship with the promotion claim is obvious. The constructive discharge claim in particular is linked to the promotion claim insofar as a finding of discrimination is a necessary predicate for a finding of constructive discharge. In view of our conclusions on certain aspects of the promotion claim which are also implicated in the district court’s disposition of the constructive discharge and retaliation claims, we vacate the district court’s findings on constructive discharge and retaliation. We remand those matters to the district court with instructions to reconsider the constructive discharge and retaliation claims in light of our holding on the promotion claim. Reversed in part, vacated in part, and remanded . The district court considered but rejected ap-pellee’s argument that appellants’ suit was barred by laches because appellants failed to bring suit during the lengthy delay in the EEOC’s processing of their complaint. Bishopp v. District of Columbia, 602 F.Supp. 1401, 1404 (D.D.C.1985). Under the statute, appellants could have brought suit before receiving their right to sue notice because the EEOC’s delay in issuing the notice or otherwise acting on the charges exceeded 180 days. 42 U.S.C. § 2000e-5(f)(1) (1982). The district court applied the standards of Rozen v. District of Columbia, 702 F.2d 1202 (D.C.Cir.1983), and determined that since appellants were proceeding pro se before the EEOC and they testified that they did not know they could sue before the EEOC issued the notice, their delay was not unreasonable. The court further stated that even if the delay were unreasonable, the District had not suffered substantial and material prejudice. 602 F.Supp. at 1404. We agree with the district court’s resolution of the laches issue under the" }, { "docid": "22835357", "title": "", "text": "EEOC right-to-sue letters on the underlying allegations until April 1, 2002. A right-to-sue letter is a condition precedent to filing a Title VII claim. See 42 U.S.C. § 2000e-5(f)(1); Pinkard v. Pullman-Standard, 678 F.2d 1211, 1215 (5th Cir.1982). In July 2001, before filing Davis I, Appellants filed charges against DART and Chief Rodriguez with the EEOC. The charges alleged that the July 2001 Internal Affairs investigation constituted harassment and retaliation for Appellants’ prior criticism of DART and Chief Rodriguez. By the time Appellants received the right-to-sue letters on April 1, 2002, judgment had been entered in Davis I for over a month. Hence, Appellants maintain that even if some of the allegations in Davis I and Davis II were part of the same cause of action and overlapped temporally, the Davis II claims should not be barred because Appellants were not able to bring them in Davis I. The district court disagreed, noting , that: [wjhile Title VII requires exhaustion of administrative remedies before a federal claim may be brought, there were options available to Plaintiffs other than simply choosing between their claims. Plaintiffs could have filed the 2595 suit and requested a stay pending the conclusion of the administrative proceedings on thé two-EEOC complaints at issue in this discussion, or Plaintiffs could have delayed filing the first suit until the administrative proceedings were completed. This circuit has never directly addressed whether a Title VII claim may be barred by res judicata if, at the time of the earlier suit, the plaintiffs have not yet received a right-to-sue letter. However, several of our sister circuits have answered this question in the affirmative. The district court in this case relied on Woods v. Dunlop Tire Corp., 972 F.2d 36 (2d Cir.1992), in which the Second Circuit held that a plaintiffs Title VII claims were barred by res judicata even though she had not received a right-to-sue letter at the time she filed her lawsuit. In Woods, the plaintiffs Title VII claims arose out of the same transaction as a previously filed Labor Management Relations Act (“LMRA”) claim. Id. at 38. Although" }, { "docid": "13638534", "title": "", "text": "in court plaintiff, after further delay, brought suit in this Court to determine which agency had jurisdiction over her administrative claim. Fridy v. Bell, et al., C.A. No. 78-1804 (D.D.C. filed Sept. 26, 1978) (Hart, J.). In April of 1979 the case was settled when the EEOC agreed to accept jurisdiction of plaintiff’s case. In September, 1980, plaintiff inquired of EEOC concerning the status of her case. She received no response. Plaintiff renewed her inquiry some 17 months later in February, 1982. The EEOC’s response indicated that it knew nothing of plaintiff’s ease. After some further communication, plaintiff was advised in January, 1983, that the matter was now under investigation by the EEOC. Finally, as a result of a request by plaintiff’s attorney, the EEOC issued a right-to-sue letter on September 8, 1983, and the present suit was filed on November 18, 1983. The doctrine of laches provides a defense where the evidence shows “both that the delay [in bringing suit] was unreasonable and that it prejudiced the defendant.” Powell v. Zuckert, 366 F.2d 634, 636 (D.C. Cir.1966). In the case now before the Court both the necessary elements are present. Plaintiff does not dispute defendants’ assertion that at the time of the events complained of she held a competitive service position and sought promotion to another competitive position. Under 42 U.S.C. § 2000e-16(c), therefore, plaintiff was entitled to bring an action in this Court after 180 days had elapsed from the date her complaint was filed with the EEOC. The sorry performance by the EEOC with respect to plaintiff’s administrative claim does not alter this fact. The agency’s inadequate and confused responses to plaintiff’s repeated, albeit widely-spaced, inquiries concerning the status of her claim must have alerted plaintiff, who has been aided by counsel since at least mid-1975, that she should seek her remedy in court. Plaintiff has clearly slept on her oars. The District of Columbia has been seriously prejudiced by plaintiff’s delay. Not until September, 1978, at the earliest, when plaintiff filed suit against the EEOC and the Civil Service Commission, did the District have any awareness" }, { "docid": "2039773", "title": "", "text": "dictum the panel suggested that, even if it were available, a section 706 defense would not apply because the delay was not unreasonable and there was no showing of prejudice. Id. Although it expressly rejected the availability of the defense, as subsequent cases reflect the Chromcraft court inadvertently sowed the seed for its later use. In EEOC v. Exchange Security Bank, 529 F.2d 1214 (5th Cir.1976), another panel, citing Chromcraft, reversed the district court’s refusal to enforce a stale investigative subpoena, impliedly recognizing the existence of a section 706 defense. We remanded for consideration of whether the delay was prejudicial, and later affirmed, by memorandum opinion, the district court’s finding of prejudice. EEOC v. First Alabama Bank of Birmingham, 440 F.Supp. 1381 (N.D.Ala.1977), aff'd mem., 611 F.2d 132 (5th Cir.1980). Meanwhile, in EEOC v. Moore Group, Inc., 416 F.Supp. 1002 (N.D.Ga.1976), another district court concluded that although the defense of laches was not available, the APA applied, stating: In EEOC v. Exchange Security Bank, [529 F.2d] at 1217, the Fifth Circuit seems to have resolved its uneasiness concerning the use of § 706 as a defense to lengthy delays in EEOC actions by holding that the requirements of § 706 “established by Chromcraft must be applied by this Court in considering the effect of delay uncontrolled by statutory time limitations.” Moore Group, Inc., 416 F.Supp. at 1004. The court dismissed, concluding that the same elements applied under the section 706 defense as under laches. Id. at 1005. In Bell Helicopter the district court cited Chromcraft and Exchange Security Bank in dismissing a stale claim under sections 555(b) and 706. When the claimant later filed suit on his own behalf, the district court dismissed on the basis of res judicata. We affirmed that dismissal. Jones v. Bell Helicopter Co., 614 F.2d 1389 (5th Cir.1980). As recently as 1985 we cited Chromcraft and Exchange Security Bank in rejecting a section 706 defense for failure to show prejudice, but we again reserved the issue of its applicability: [Appellant] urges this Court to invoke its review powers under 5 U.S.C. § 706 to set" }, { "docid": "9919132", "title": "", "text": "Reversed in part, vacated in part, and remanded . The district court considered but rejected ap-pellee’s argument that appellants’ suit was barred by laches because appellants failed to bring suit during the lengthy delay in the EEOC’s processing of their complaint. Bishopp v. District of Columbia, 602 F.Supp. 1401, 1404 (D.D.C.1985). Under the statute, appellants could have brought suit before receiving their right to sue notice because the EEOC’s delay in issuing the notice or otherwise acting on the charges exceeded 180 days. 42 U.S.C. § 2000e-5(f)(1) (1982). The district court applied the standards of Rozen v. District of Columbia, 702 F.2d 1202 (D.C.Cir.1983), and determined that since appellants were proceeding pro se before the EEOC and they testified that they did not know they could sue before the EEOC issued the notice, their delay was not unreasonable. The court further stated that even if the delay were unreasonable, the District had not suffered substantial and material prejudice. 602 F.Supp. at 1404. We agree with the district court’s resolution of the laches issue under the standard set forth in Rozen. . That ruling is not at issue in this appeal. . Cf. Lanphear v. Prokop, 703 F.2d 1311 (D.C. Cir.1983) (affirmative action plan in development stage deemed a factor in establishment of prima facie case). The issue is not squarely before us, but we note that it is not clear whether a lawful, promulgated affirmative action plan can nonetheless provide a link in a prima facie case that would justify the inference of discrimination. See Parker v. Baltimore & O. R.R., 652 F.2d 1012, 1017 n. 9 (D.C.Cir.1981) (dictum) (declining to suggest that lawful affirmative action plan \"in itself' constitutes \"suspicious circumstances” sufficient to justify inference of discriminatory intent). Although the Supreme Court has yet to speak definitively on the lawfulness of government-adopted affirmative action plans, see Wygant v. Jackson Bd. of Education, 746 F.2d 1152 (6th Cir.1984), cert. granted, — U.S. -, 105 S.Ct. 2015-16, 85 L.Ed.2d 298 (1985), it has upheld the validity of an affirmative action plan in the private sector. See United Steelworkers v. Weber, 443" }, { "docid": "15223092", "title": "", "text": "the plaintiff's “failure to file his Title VII until completion of the EEOC process was not inexcusable delay and cannot support the application of laches.” No mention is made of any action on the part of plaintiff during the five year delay in that case, or of any obligation upon the plaintiff to take any action. Howard v. Roadway Express, Inc., 726 F.2d 1529, 1533 (11th Cir.1984). The Sixth Circuit follows this approach in Cleveland Newspaper Guild v. The Plain Dealer Publishing Co., 813 F.2d 101, which involves a ten year EEOC process before a right-to-sue letter was finally issued. In that case, however, the plaintiff was affirmatively told by letter from the EEOC two years after the charge was filed that the EEOC was uncertain when it could begin to process the charge and that plaintiff could choose to keep the charge open until the EEOC could attend to it rather than bring suit in court at that time. Under the finding of facts in this case, the Court concludes that the passage of 15 years from the filing of plaintiffs terms-and-conditions EEOC charge, and of 14% years from the amendment of his charge to include his discharge constitute inexcusable and unreasonable delay. As stated, plaintiffs contact with the EEOC was minimal until 1980 when he learned of the successful litigation by other disciplined employees. Even then he did not actively pursue his rights until the beginning of 1984 when he learned of the National Settlement Agreement. Prejudice The issue of whether a defendant suffered prejudice from a delay is intertwined with the determination of whether a delay is unreasonable. “If only a short period of time has elapsed since the accrual of the claim, the magnitude of prejudice require^] before the suit should be barred is great, whereas if the delay is lengthy, prejudice is more likely to have occurred and less proof of prejudice will be required.” Goodman v. McDonnell Douglas Corp., 606 F.2d at 800. EEOC v. Westinghouse Electric Corp., 592 F.2d 484, 486 (8th Cir. 1979) and EEOC v. Liberty Loan Corp., 584 F.2d 853," }, { "docid": "15223091", "title": "", "text": "have an absolute right to await termination of EEOC proceedings.” Jeffries v. Chicago Transit Authority, 770 F.2d 676 (7th Cir.1985) (relying on administrative process cannot excuse 10 year delay between bringing charge and filing suit where plaintiff did nothing to prod agency or to seek a right-to-sue letter), cert. denied, 469 U.S. 925, 106 S.Ct. 1273, 89 L.Ed.2d 581 (1986). The D.C. Circuit and the Ninth Circuit have taken a similar position. Rozen v. District of Columbia, 702 F.2d 1202, 1204 (D.C.Cir.1983) holds that plaintiff’s failure to secure a right-to-sue letter for four years does not constitute unexcusable delay where plaintiff did not sleep on his rights. The holding in Gifford v. Atchison, Topeka & Santa Fe Ry., 685 F.2d 1149, 1152 (9th Cir. 1982) is that the EEOC delay of five years in issuing right-to-sue letter is not attributable to plaintiff because she repeatedly appealed to the EEOC for action and was assured by the agency that suit would be filed on her behalf. The Eleventh Circuit, on the other hand, has held that the plaintiff's “failure to file his Title VII until completion of the EEOC process was not inexcusable delay and cannot support the application of laches.” No mention is made of any action on the part of plaintiff during the five year delay in that case, or of any obligation upon the plaintiff to take any action. Howard v. Roadway Express, Inc., 726 F.2d 1529, 1533 (11th Cir.1984). The Sixth Circuit follows this approach in Cleveland Newspaper Guild v. The Plain Dealer Publishing Co., 813 F.2d 101, which involves a ten year EEOC process before a right-to-sue letter was finally issued. In that case, however, the plaintiff was affirmatively told by letter from the EEOC two years after the charge was filed that the EEOC was uncertain when it could begin to process the charge and that plaintiff could choose to keep the charge open until the EEOC could attend to it rather than bring suit in court at that time. Under the finding of facts in this case, the Court concludes that the passage of" }, { "docid": "9919111", "title": "", "text": "was shared by Fire Chief Burton Johnson and the Mayor, Walter Washington, both of whom are black. But it was undisputed that Fire Chief Johnson had de facto responsibility for the decision because the Mayor routinely adopted his recommendations. Applications to fill the vacant position were not sought, apparently because the Fire Department did not have a formal application process for the AFCO position. Instead, Chief Johnson prepared a list of “best qualified candidates” that included all of the appellants as well as Lewis. Chief Johnson selected Lewis, even though as the district court found, appellants were superior candidates to Lewis in terms of ordinary personnel criteria: “seniority, education, breadth of experience and the like.” Bishopp v. District of Columbia, 602 F.Supp. 1401, 1408 (D.D.C.1985). Each of the appellants had longer service than Lewis and all except Yocum had attained higher rank than Lewis. Breen, Bishopp and Zeis “had taken courses in such relevant matters as fire engineering and nuclear safety; Lewis did not have comparable credits.” Id. at 1407. All of the appellants except Yocum had served satisfactorily as Acting AFCO, whereas Lewis, as a Battalion Chief, did not serve as acting AFCO until Johnson decided to recommend his promotion. After Lewis’ selection, appellants filed a grievance with the Fire Department alleging racial discrimination and thereafter, in the autumn of 1974, filed charges with the EEOC. The EEOC issued findings in appellants’ favor on February 25, 1982 and issued a right to sue letter on November 18 of that year. Shortly thereafter suit was filed in the district court. At trial, appellants introduced evidence of their relative qualifications vis-a-vis Lewis, and appellant Breen testified that Chief Johnson had admitted to Breen before the selection that Johnson was under pressure from the District’s black community to promote Lewis. The district court also noted that the Fire Department was beginning to develop an affirmative action plan at that time. The court refused, however, to admit as evidence the District’s affirmative action plan or to consider an alternative defense based on that plan, ruling that it was inconsistent with the District’s assertion" }, { "docid": "22277954", "title": "", "text": "adequate defense. Geyen v. Marsh, 775 F.2d 1303, 1310 (5th Cir.1985). 1. Delay The district court in this case found that there had been a delay of nine years in bringing suit on the EEOC charges Plaintiffs filed in 1977. The district court correctly held that the period of time during which conciliation efforts were ongoing should not be counted against Plaintiffs in calculating the period of delay. See Fowler, 596 F.2d at 1279 (“[Although the doctrine of laches may be available in some cases to bar the EEOC from bringing suit, this bar arises only if the EEOC has delayed unreasonably after it has completed conciliation.”) (emphasis in original). Neither party disputes that conciliation efforts were terminated in 1980, nor that suit was not filed until late 1989. 2. Inexcusability The magistrate judge found, and the district court agreed, that Plaintiffs’ delay in bringing suit was not excused. The magistrate judge based his determination as to inexcusability on the following undisputed facts: (1) Plaintiffs have been represented by counsel continuously since conciliation efforts were terminated in 1980; (2) the plaintiff union (and its predecessor), whose expertise in employment matters is presumed, was actively involved in the case from the time charges were filed with the EEOC in 1977; (3) Plaintiffs failed to take advantage of their right under the statute (42 U.S.C. § 2000e-5) to demand right to sue letters at any time after 180 days following filing of the EEOC charges; (4) Plaintiffs did not at any time from 1980 to 1989 make any inquiry with the Department of Justice or the EEOC as to the status of their claims; and (5) Plaintiffs’ then attorney called a press conference in 1984, accusing the EEOC of failure to act and promising to file suit within six weeks, yet Plaintiffs did nothing at that time nor for five years thereafter to bring this suit. Plaintiffs attack the inexcusability determination, advancing two interrelated arguments. First, they argue that their delay in filing suit was not inexcusable because they were relying on the administrative process. Second, Plaintiffs contend, in effect, that they" }, { "docid": "3539430", "title": "", "text": "an age discrimination charge with the EEOC on March 19, 2003; the EEOC issued a Notice of Right to Sue on April 11, 2003. Under 29 U.S.C. § 626(d) and (e), appellant had to file the instant suit more than sixty days after filing his EEOC complaint and within ninety days of his receipt of the EEOC Notice. Hankins complied with both requirements by filing suit on July 3, 2003— more than 60 days after March 19, and 83 days after April 11. Furthermore, contrary to appellees’ arguments, the instant suit was not barred by appellant’s June 11, 2003 filing of a Complaint with the New York Division of Human Rights because the Division dismissed the complaint on July 1, 2003, before appellant filed this suit. See 29 U.S.C. § 633(b) (ADEA prohibits bringing suit before 60 days after commencement of state proceedings, “unless such proceedings have been earlier terminated”). Appellees rely for their jurisdictional contention on two Title YII cases: Martini v. Fed. Nat’l Mortgage Ass’n, 178 F.3d 1336 (D.C.Cir.1999), and Rodriguez v. Connection Tech. Inc., 65 F.Supp.2d 107 (E.D.N.Y.1999). These cases inferred from the language of 42 U.S.C. § 2000e-5(f)(1) that the EEOC lacks authority to issue right-to-sue notices based on Title VII claims before 180 days after a charge is filed. E.g., Martini, 178 F.3d at 1347 (“[T]he EEOC’s power to authorize private suits within 180 days undermines its express statutory duty to investigate every charge filed, as well as Congress’s unambiguous policy of encouraging informal resolution of charges up to the 180th day.”). We have not decided whether the regulation allowing early issuance of right-to-sue notices, 29 C.F.R. § 1601.28(a)(2), is a permissible construction of Section 2000e-5. We express no opinion on the issue here, although we note that two circuits and several district courts within this circuit have disagreed with Martini and Rodriguez. Sims v. Trus Joist MacMillan, 22 F.3d 1059, 1061-63 (11th Cir.1994) (early issuance of right-to-sue letter by EEOC does not bar a Title VII suit); Saulsbury v. Wismer & Becker, Inc., 644 F.2d 1251, 1257 (9th Cir.1980) (same); Commodari v. Long Island" }, { "docid": "12888300", "title": "", "text": "had been prejudiced by the delay. Defendant thus contended that Rozen’s Title VII count should be dismissed on the ground of laches. The district court agreed. In its November 10, 1981 memorandum opinion, the court held that Rozen had “unreasonably and inexcusably delayed” in filing suit, and that a plaintiff should “be prevented from Tying low’ to his adversary’s disadvantage after he has requested a notice to sue but where one does not issue within a reasonable time.” The court also ruled that defendant had been prejudiced by the delay because a witness and certain employment records were unavailable. This appeal followed. II The defense of laches requires a finding both that the plaintiff delayed inexcusably or unreasonably in filing suit and that the delay was prejudicial to the defendant. Boone v. Mechanical Specialties Co., 609 F.2d 956, 958 (9th Cir.1979); Save Our Wetlands, Inc. v. Army Corps of Engineers, 549 F.2d 1021 (5th Cir.), cert. denied, 434 U.S. 836, 98 S.Ct. 126, 54 L.Ed.2d 98 (1977). Although laches may apply to Title VII actions brought by private plaintiffs, Fowler v. Blue Bell, Inc., 596 F.2d 1276 (5th Cir.1979), it is also true that Title VII “is remedial legislation dependent for its enforcement on laymen,” and that “resort to technicalities to foreclose recourse to administrative or judicial processes is particularly inappropriate.” Bethel v. Jefferson, 589 F.2d 631, 642 (D.C.Cir.1978) (citations omitted). We find that under the facts of this case a defense of laches is unsupportable. The threshold inquiry is whether Rozen delayed unreasonably in filing suit in the district court. We disagree with the district court that Rozen should be held responsible for the delay in the issuance of his right to sue notice. The facts reveal that the September 21,1978 letter from the EEOC instructed Rozen that he could initiate a suit on his own behalf after he received notice from the Department of Justice. Rozen had a right to assume that such notice would be forthcoming, and we cannot impute to Rozen, proceeding pro se, knowledge of the statutory scheme that would have authorized him to file" }, { "docid": "2039774", "title": "", "text": "its uneasiness concerning the use of § 706 as a defense to lengthy delays in EEOC actions by holding that the requirements of § 706 “established by Chromcraft must be applied by this Court in considering the effect of delay uncontrolled by statutory time limitations.” Moore Group, Inc., 416 F.Supp. at 1004. The court dismissed, concluding that the same elements applied under the section 706 defense as under laches. Id. at 1005. In Bell Helicopter the district court cited Chromcraft and Exchange Security Bank in dismissing a stale claim under sections 555(b) and 706. When the claimant later filed suit on his own behalf, the district court dismissed on the basis of res judicata. We affirmed that dismissal. Jones v. Bell Helicopter Co., 614 F.2d 1389 (5th Cir.1980). As recently as 1985 we cited Chromcraft and Exchange Security Bank in rejecting a section 706 defense for failure to show prejudice, but we again reserved the issue of its applicability: [Appellant] urges this Court to invoke its review powers under 5 U.S.C. § 706 to set aside the Board’s action as unreasonably delayed. Assuming that section 706 “creates mandatory duties on administrative agencies sufficient to set aside agency action as unlawful if ‘unreasonably delayed,’ § 706 further requires ... a showing of prejudice before agency action can be set aside for its lack of punctuality.” King v. National Transp. Safety Board, 766 F.2d 200, 202 (5th Cir.1985) (quoting Chromcraft). Today we squarely face whether sections 706 and 555 of the APA may be used not only to compel but also to bar agency action unreasonably delayed. We conclude that the plain language of the statute provides no authority for dismissing the action of the HHS. This interpretation is buttressed by the congressional intent reflected in the legislative history of the APA. We conclude and hold that these sections of the APA grant authority to the courts to compel agency action unreasonably delayed, but do not incorporate the equitable doctrine of laches into judicial review of the timeliness of actions brought by an agency in pursuit of its responsibilities. Dismissal of UTS" }, { "docid": "12888301", "title": "", "text": "brought by private plaintiffs, Fowler v. Blue Bell, Inc., 596 F.2d 1276 (5th Cir.1979), it is also true that Title VII “is remedial legislation dependent for its enforcement on laymen,” and that “resort to technicalities to foreclose recourse to administrative or judicial processes is particularly inappropriate.” Bethel v. Jefferson, 589 F.2d 631, 642 (D.C.Cir.1978) (citations omitted). We find that under the facts of this case a defense of laches is unsupportable. The threshold inquiry is whether Rozen delayed unreasonably in filing suit in the district court. We disagree with the district court that Rozen should be held responsible for the delay in the issuance of his right to sue notice. The facts reveal that the September 21,1978 letter from the EEOC instructed Rozen that he could initiate a suit on his own behalf after he received notice from the Department of Justice. Rozen had a right to assume that such notice would be forthcoming, and we cannot impute to Rozen, proceeding pro se, knowledge of the statutory scheme that would have authorized him to file suit absent the notice. This is not a case where a plaintiff fails to file suit when that option is known and within the plaintiffs power, see EEOC v. Dresser Industries, Inc., 668 F.2d 1199 (11th Cir.1982) (laches defense upheld where EEOC delayed five years in filing suit), or where a private plaintiff is offered a right to sue letter yet repeatedly refuses to take action, see Boone v. Mechanical Specialties, Inc., supra, 609 F.2d at 957 (laches defense upheld where EEOC informed plaintiff of right to obtain notice and plaintiff delayed seven years). Defendant argues that evidence of Rozen’s unreasonable delay lies in his failure to seek a right to sue letter. This contention is without merit. Apart from our hesitation to impose such a duty after the EEOC informed Rozen that the notice would be forthcoming, we find that even a conservative interpretation of Rozen’s November 6, 1978 letter to the EEOC indicates strongly his intention to file suit. At the very least, this letter should have indicated to the EEOC that the" }, { "docid": "12888303", "title": "", "text": "claim would be pursued, and it sufficiently rebuts any inference that Rozen was content to “sleep on his rights.” That Rozen sent this letter to the EEOC rather than the Department of Justice is the type of error to which we will not hold a pro se litigant accountable. Although our holding that Rozen did not unreasonably delay in filing suit is disposi-tive of the laches defense, we note further that any prejudice suffered by defendant in this case is attributable to its own actions. First, it appears at this time that Rozen is pursuing his allegation of discriminatory treatment only in regard to certain work assignments in late-1976 and early-1977. In the district court, defendant conceded that “[i]t is possible, although not at all certain, that some of these records might be warehoused in boxes at one of several locations, organized if at all by agency name and time periods.... ” Given that the relevant records may still be available, any difficulty in retrieving the records is an insufficient basis to deny Rozen an opportunity to litigate his claim. Second, even if pertinent records were destroyed, it is apparent that they were done so in violation of the EEOC regulation that requires an employer against whom a discrimination claim is filed to “preserve all personnel records relevant to the charge or action until final disposition of the charge or action.” See 29 C.F.R. § 1602.14(a) (1977). As such, defendant cannot now claim that Rozen’s “delay” has been prejudicial. For the foregoing reasons, the judgment of the district court is reversed and the cause remanded for further proceedings consistent with this opinion. . Formerly, the Department of Justice was responsible for issuing notices of right to sue where the respondent was a “government, governmental agency, or a political subdivision,” 29 C.F.R. § 1601.28(d) (1981), and shall do so “promptly.” Id., section 1601.28(a). . Shortly after the District of Columbia was served, Rozen was informed that his job would be eliminated as part of a “Reduction in Force” (RIF), effective January 1, 1981. Rozen appealed the RIF to the Merit Systems" }, { "docid": "13638538", "title": "", "text": "the allegations of misconduct by Mr. Schumann constitute a claim against the District of Columbia. Monell v. New York Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). Finally, it also appears that no claim can be stated under § 1983 or the Fourteenth Amendment for actions occurring in 1972. District of Columbia v. Carter, 409 U.S. 418, 424, 432, 93 S.Ct. 602, 606, 610, 34 L.Ed.2d 613 (1973). . Even if it were assumed that plaintiff was first required to obtain a right-to-sue letter under 42 U.S.C. § 2000e-5(f)(1), which plaintiff would have been entitled to 180 days after her initial complaint was filed, it is clear from the undisputed facts that plaintiff has not exercised reasonable diligence in seeking such a letter. At least as early as 1975 it was clear that EEOC was willing to issue such a letter and plaintiff was so advised. See exhibits 4 and 6 to defendants' motion for summary judgment. . Plaintiffs Title VII action is, of course, in essence an action against the government of the District of Columbia. . The present case thus stands in marked contrast to the situation before the Court in Rozen v. District of Columbia, 702 F.2d 1202 (D.C.Cir. 1983). Unlike the plaintiff in Rozen, plaintiff here has had the benefit of counsel for at least the past eight or nine years. Here also plaintiff ignored a 1975 request from the EEOC for information so her request for a right-to-sue letter could be acted on. See Boone v. Mechanical Specialties, Inc., 609 F.2d 956, 959 (9th Cir. 1979). And, of particular significance, the loss of crucial evidence cannot be attributed to defendants in the present case because of plaintiff's failure to put her employer on notice of her claims. Finally, the Court notes that the delay between the events complained of and the filing of suit in District Court totals over eleven years, as contrasted with a period of slightly under four years in Rozen." }, { "docid": "15223094", "title": "", "text": "857 (8th Cir.1978) enunciate a stricter standard for finding prejudicial effect when the EEOC itself delays in bringing a Title VII suit. In such a situation, a defendant must establish “with such clarity as to leave no room for controversy” that it has been substantially and unduly prejudiced because of the EEOC’s delay. Applying this stricter standard of prejudice to this private plaintiff case, the Court concludes that plaintiff’s delay has caused GMC substantial and undue difficulties in defending the law suit. The prejudice to defendant as to plaintiff’s claim of discriminatory terms and conditions of employment prior to his termination is clear. Records have been destroyed, supervisory personal responsible for the alleged acts have died, memories have faded. It is precisely these types of problems which the doctrine of laches addresses. The prejudice to defendant as to plaintiff’s claim of discriminatory termination is slightly different. The Court concludes that the Mosley case establishes as a matter of law that defendant’s discharge of plaintiff on March 29, 1971 was in violation of Title VII. Thus, the current unavailability of evidence on the circumstances surrounding the termination is not really relevant. Defendant, however, has been seriously prejudiced by the 14% year delay in another way. If the EEOC had issued a right-to-sue letter prior to that issued on July 22, 1985, as defendant tried to establish, this suit would be barred by the jurisdictional requirement that a Title VII suit be filed within 90 days of receipt of a right-to-sue letter. See 42 U.S.C. § 2000e-5(f). As the above findings of fact set forth, because plaintiff’s EEOC records were destroyed, at the latest in 1979, it is impossible to determine whether a timely right-to-sue let ter was received. Thus, the delay involved in the case precluded defendant from establishing a statute of limitations defense. The Court concludes that these circumstances support the application of laches in this case. Another purpose underlying the doctrine of laches, other than the impairment of a defendant’s ability to defend, is repose— the concept that at some point a party is entitled to assume that it" }, { "docid": "12888302", "title": "", "text": "suit absent the notice. This is not a case where a plaintiff fails to file suit when that option is known and within the plaintiffs power, see EEOC v. Dresser Industries, Inc., 668 F.2d 1199 (11th Cir.1982) (laches defense upheld where EEOC delayed five years in filing suit), or where a private plaintiff is offered a right to sue letter yet repeatedly refuses to take action, see Boone v. Mechanical Specialties, Inc., supra, 609 F.2d at 957 (laches defense upheld where EEOC informed plaintiff of right to obtain notice and plaintiff delayed seven years). Defendant argues that evidence of Rozen’s unreasonable delay lies in his failure to seek a right to sue letter. This contention is without merit. Apart from our hesitation to impose such a duty after the EEOC informed Rozen that the notice would be forthcoming, we find that even a conservative interpretation of Rozen’s November 6, 1978 letter to the EEOC indicates strongly his intention to file suit. At the very least, this letter should have indicated to the EEOC that the claim would be pursued, and it sufficiently rebuts any inference that Rozen was content to “sleep on his rights.” That Rozen sent this letter to the EEOC rather than the Department of Justice is the type of error to which we will not hold a pro se litigant accountable. Although our holding that Rozen did not unreasonably delay in filing suit is disposi-tive of the laches defense, we note further that any prejudice suffered by defendant in this case is attributable to its own actions. First, it appears at this time that Rozen is pursuing his allegation of discriminatory treatment only in regard to certain work assignments in late-1976 and early-1977. In the district court, defendant conceded that “[i]t is possible, although not at all certain, that some of these records might be warehoused in boxes at one of several locations, organized if at all by agency name and time periods.... ” Given that the relevant records may still be available, any difficulty in retrieving the records is an insufficient basis to deny Rozen an" }, { "docid": "15223090", "title": "", "text": "609 F.2d 956, 959 (9th Cir. 1979). To establish an affirmative defense of laches the defendant has the burden of proof to show: (1) an unexcusable and unreasonable delay by the plaintiff, and (2) prejudice to the defendant. Goodman v. McDonnell Douglas Corp., 606 F.2d 800, 804 (8th Cir.1979); Cleveland Newspaper Guild v. The Plain Dealer Publishing Co., 813 F.2d 101, 103 (6th Cir.1987) (private plaintiff Title VII case). In considering whether to apply laches to defeat a suit the district court must look to the “peculiar equitable circumstances of that case” and “focus upon the length of the delay, the reasons therefore, how the delay affected the defendant, and the overall fairness of permitting the assertion of the claim.” Goodman v. McDonnell Douglas Corp., 606 F.2d at 806. Delay There is some disagreement among the circuits as to whether EEOC delays in processing a claim should be attributable to a plaintiff in considering whether plaintiff’s delay in bringing a Title VII suit is excusable. The Seventh Circuit has held that a “plaintiff does not have an absolute right to await termination of EEOC proceedings.” Jeffries v. Chicago Transit Authority, 770 F.2d 676 (7th Cir.1985) (relying on administrative process cannot excuse 10 year delay between bringing charge and filing suit where plaintiff did nothing to prod agency or to seek a right-to-sue letter), cert. denied, 469 U.S. 925, 106 S.Ct. 1273, 89 L.Ed.2d 581 (1986). The D.C. Circuit and the Ninth Circuit have taken a similar position. Rozen v. District of Columbia, 702 F.2d 1202, 1204 (D.C.Cir.1983) holds that plaintiff’s failure to secure a right-to-sue letter for four years does not constitute unexcusable delay where plaintiff did not sleep on his rights. The holding in Gifford v. Atchison, Topeka & Santa Fe Ry., 685 F.2d 1149, 1152 (9th Cir. 1982) is that the EEOC delay of five years in issuing right-to-sue letter is not attributable to plaintiff because she repeatedly appealed to the EEOC for action and was assured by the agency that suit would be filed on her behalf. The Eleventh Circuit, on the other hand, has held that" }, { "docid": "16337342", "title": "", "text": "mandated period of limitation in favor of a hodgepodge of ad hoc determinations by” the Justice Department. Cleveland v. Douglas Aircraft Co., 509 F.2d 1027, 1030 (9th Cir.1975) (holding that second notice from EEOC did not revive plaintiff’s claims); cf Solomon v. Hardison, 746 F.2d 699, 702 (11th Cir.1984), as amended on denial of reh’g (1985) (letter from Justice Department noting its position that, once EEOC issued right to sue notice in case involving government entity, it would be improper for Attorney General to issue second right to sue notice). We therefore hold that the notice issued by the Justice Department did not revive appellees’ right to sue. The district court also decided that appel-lees’ suit was not time-barred because equitable considerations justified maintenance of the action. We accept, arguendo, the district court’s determination that ap-pellees justifiably “believed that pending administrative remedies relating to their OHR complaint precluded suit on the EEOC charge.” March 1984 Order at 7. Even if the OHR proceedings justified noncompliance with the deadline, however, ap-pellees waited on too long: they unjustifiably failed to bring suit within ninety days of dismissal of the OHR complaint in December 1981. The district court acknowledged that this further delay was “less understandable.” Id. That court nevertheless permitted the suit, reasoning that appellees’ interest in litigating their case outweighed appellants’ interest in avoiding an action “no longer as fresh as it might have been.” Id. at 8. When it made this evaluation, however, the district court lacked the guidance of Higher Authority that has since become available to enlighten our review. In 1984, in Baldwin County Welcome Center v. Brown, 466 U.S. 147, 104 S.Ct. 1723, 80 L.Ed.2d 196 (1984) (per curiam), the Supreme Court held that a pro se plaintiff’s action was time-barred even though she had mailed her right to sue letter to the district court, along with a request for appointed counsel, within the ninety-day limit. The Court reasoned that the plaintiff-respondent had not commenced an action because she had never filed a complaint, despite multiple warnings from the district court that she must do so within" }, { "docid": "16337344", "title": "", "text": "ninety days of her notice from the EEOC. Id. at 149-51, 104 S.Ct. at 1724-26. Tellingly for the task before us, the Court rejected the plaintiff-respondent’s contention that the ninety-day limit should be equitably tolled because the defendant-petitioner had not been prejudiced by her noncompliance: Although absence of prejudice is a factor to be considered in determining whether the doctrine of equitable tolling should apply once a factor that might justify such tolling is identified, it is not an independent basis for invoking the doctrine and sanctioning deviations from established procedures. Id. at 152, 104 S.Ct. at 1726. Similarly, in the case sub judice, lack of prejudice to appellants should enter the calculus only if another factor first provides the essential underpinning for equitable tolling. Appellees could claim the requisite “independent basis” for an equitable time extension if, for example, they had received inadequate notice from the EEOC, had been misled by the district court or the EEOC, or had been “lulled ... into inaction” by affirmative misconduct on the part of appellants. Id. at 151, 104 S.Ct. at 1726; cf. Rozen v. District of Columbia, 702 F.2d 1202, 1204 (D.C.Cir.1983) (excusing plaintiff’s delay in filing suit because EEOC had instructed him to wait until he received notice from Justice Department). No such factors exist here. Appellees were “unambiguous[ly]” notified that they must sue within ninety days of the EEOC’s dismissal of the charge. March 1984 Order at 2. In light of Baldwin County, then, we conclude that no equitable considerations justified or excused appellees’ failure to meet the ninety-day limit. Appellees’ Title VII claims therefore were not timely filed and should have been dismissed by the district court. III. Turning to the question of monetary recovery, we reject appellants’ argument that appellees are not entitled to any relief because two other whites, Joseph R. Granados and Harry H. Shaffer, would have gotten the promotions absent discrimination. As the district court held, once appellees proved they had been subjected to disparate treatment, the burden shifted to appellants to show by clear and convincing evidence that each appellee was not entitled" } ]

[ { "docid": "11242858", "title": "", "text": "York. At the time of his removal on January 8, I960',, plaintiff was a GrS-9 at $6,585 per annum. Mr. Burr was; appointed to the position as GrS-9 at $5,985 per annum, effective February 23, i960, and is presently earning $7,955 in* the same position. Plaintiff filed the petition herein on April 1, 1963, which was 39 months after his removal and nearly 17 months after final decision by the Civil Service-Commission. At the outset it is noted that plaintiff admits on brief that “* * * an employee may be removed on charges if those charges are not related to the efficient performance of an employee’s duties.” He then argues that the Federal Housing Administration’s action was “procedurally defective and illegal” because plaintiff had received satisfactory efficiency ratings and was removed without the 90-day warning period provided by section 6 of the Performance Rating Act of 1950, 64 Stat. 1098,1099,5 U.S.C. § 2005 (1958). The short answer to the above contention is that plaintiff’s, separation was for cause and considered such as to promote the efficiency of the service and was pursuant to the Veterans7 Preference Act of 1944, supra, and he was afforded the “thirty days advance written notice” of the proposed separation as provided in section 14 of that Act. This is evidenced by the October 2,1959 notice and the final notice of January 4,1960. This court has stated, on numerous occasions, that the procedures of the Veterans’ Preference Act, supra, and the Lloyd-LaFollette Act, 62 Stat. 354 (1948), 5 U.S.C. §652 (1958), govern removals for cause; that the procedures of the Performance Bating Act, supra, are not applicable to such removals. Atkinson v. United States, 144 Ct. Cl. 585 (1959); Chisholm v. United States, 149 Ct. Cl. 8, 12 (1960). Since plaintiff’s removal was accomplished under section 14 of the Veterans’ Preference Act, supra, and in compliance with all procedures thereof, the court will not review the merits of his separation. Keim v. United States, 177 U.S. 290, 292 (1900); Monday v. United States, 146 Ct. Cl. 6, 9 (1959), cert. denied 361 U.S. 965, absent" } ]

[ { "docid": "17988612", "title": "", "text": "the Lloyd-La Follette Act, 37 Stat. 555, as amended, 62 Stat. 355. This, incidentally, was the Act under which plaintiff’s removal was effected and provides in pertinent part as follows: No person in the classified civil service of the United States shall be removed or suspended without pay therefrom except for such cause as will promote the efficiency of such service and for reasons given in writing. Any person whose removal or suspension without pay is sought shall (1) have notice of the same and of any charges preferred against him; (2) be furnished with a copy of such charges; (3) be allowed a reasonable time for filing a written answer to such charges, with affidavits ; and (4) be furnished at the earliest practicable date with a written decision on such answer. No examination of witnesses nor any trial or hearing shall be required except in the discretion of tire officer or employee directing the removal or suspension without pay. Copies of the charges, the notice of hearing, the answer, idle reasons for removal or suspension without pay, and the order of removal or suspension without pay shall be made a part of the records of the proper department or agency, as shall also the reasons for reduction in grade or compensation; and copies of the same shall be furnished, upon request, to the person affected and to the Civil Service Commission. This subsection shall apply to a person within the purview of section 14 of the Veterans’ Preference Act of 1944, as amended, only if he so elects. The petition does not allege any arbitrary or capricious action in connection with plaintiff’s discharge and at the trial plaintiff’s counsel stated that the claim was based on procedural error in her performance rating. Plaintiff’s reliance on this theory, however, is misplaced. She was not discharged on the basis of her unsatisfactory performance rating, but on the basis of unsatisfactory performance of the duties of the position and for such cause as would promote the efficiency of the service, as provided for in the Lloyd-La Follette Act, supra. Furthermore, as" }, { "docid": "22119387", "title": "", "text": "as in the Board’s opinion it deserves. [168 Ct. Cl. at 530, 412 F. 2d at 878.] There was no showing that this procedure was a violation of any agency regulations nor is there such a showing here. The BAR also noted that there was a delay of 8 months between the submission of the ex parte statement and final decision by the Regional Office in Salter. During this time plaintiff did not raise any challenge to it. It is not clear from the record in the instant case just when plaintiff learned about Mr. Guba’s statement to Mr. Duehay but it appears that this statement made in 1967 was first challenged by plaintiff’s brief and motion filed in this case on February 1, 1972. The final ground for procedural error which the plaintiff presents in this case arises out of the fact that the 90-day notice to improve performance, given to plaintiff on April 4, 1967, listed areas of improvement which differed somewhat from the five grounds for discharge listed in the letter of July 12, 1967. The plaintiff argues that he was misled by these differences and that this was prejudicial. It is clear that the Veterans’ Preference Act, 5 U.S.C. § 7512 (Supp. Ill, 1965-67), requires only that the employee be given “at least 30 days’ advance written notice * * * stating any and all reasons, specifically and in detail, for the proposed action.” Plaintiff in this case received a specific and detailed notice of the proposed action on July 12, 1967, far more than 30 days in advance of his discharge on August 22,1967. He was given adequate time in which to answer the charges made, both orally and in writing, and does not, therefore, appear to have been prejudiced by the differences between the April 4 notice and that of July 12. The adverse action was taken on the July 12, 1967 charges. The court views this issue as quite similar to the holdings of those cases in which the plaintiffs attempted to overturn discharges that otherwise met the requirements of the Lloyd-La Follette" }, { "docid": "22119388", "title": "", "text": "July 12, 1967. The plaintiff argues that he was misled by these differences and that this was prejudicial. It is clear that the Veterans’ Preference Act, 5 U.S.C. § 7512 (Supp. Ill, 1965-67), requires only that the employee be given “at least 30 days’ advance written notice * * * stating any and all reasons, specifically and in detail, for the proposed action.” Plaintiff in this case received a specific and detailed notice of the proposed action on July 12, 1967, far more than 30 days in advance of his discharge on August 22,1967. He was given adequate time in which to answer the charges made, both orally and in writing, and does not, therefore, appear to have been prejudiced by the differences between the April 4 notice and that of July 12. The adverse action was taken on the July 12, 1967 charges. The court views this issue as quite similar to the holdings of those cases in which the plaintiffs attempted to overturn discharges that otherwise met the requirements of the Lloyd-La Follette Act or the Veterans’ Preference Act, simply because some of the requirements of the Performance Rating Act, 5 U.S.C. § 2001 et seq. (1958), had not been followed. In Angrisani v. United States, 172 Ct. Cl. 439, 443 (1965), the plaintiff argued that since he held a “satisfactory” rating he could not be discharged on 30 days’ notice since he did not receive the 90-day warning required by section 2005 of the Performance Rating Act of 1950, when an employee’s rating is changed from satisfactory to unsatisfactory. The court held that the PRA is distinct from those other federal personnel statutes that set the standards for when a federal employee may be discharged. When the employee receives the procedural protections itemized in the Lloyd-La Follette Act or the Veterans’ Preference Act, he has no room for complaint. Accord, Armstrong v. United States, 186 Ct. Cl. 539, 405 F. 2d 1275, cert. denied, 395 U.S. 934 (1969); Creamer v. United States, 174 Ct. Cl. 408, 414, cert. denied, 385 U.S. 819 (1966). Since the plaintiff in" }, { "docid": "2271159", "title": "", "text": "§§ 2001-2007). Under that provision, an employee may be removed for unsatisfactory performance but only after a 90 day advance warning and a “reasonable opportunity to demonstrate satisfactory performance.” But the agency did give plaintiff a 90 day warning and an opportunity to improve. The CSC found that the agency had a series of guidance meetings after the June 20, 1963, notice to help plaintiff improve his work and apprise him of the caliber of work that was expected of him. In any event, plaintiff was removed under 5 U.S.C. § 7512 (Supp. III, 1965-1967), (Veterans’ Preference Act) for specified inefficiencies. The Performance Eating Act does not control personnel action under an independent statute. Creamer v. United States, 174 Ct. Cl. 408, cert. denied, 385 U.S. 819 (1966). As we said in Angrisani v. United States, 172 Ct. Cl. 439 (1965),at p.443: This court has stated, on numerous occasions, that the procedures of the Veterans’ Preference Act, * * * and the Lloyd-LaFollette Act, * * * govern removals for cause; that the procedures of the Performance Eating-Act, * * * are not applicable to such removals. * * * An unsatisfactory performance rating is not a prerequisite to the removal of an inefficient employee. Thomas v. Ward, 225 F. 2d 953, 955 (D.C. Cir. 1955), cert. denied, 350 U.S. 958 (1956) ; Angrisani v. United States, supra; Chisholm v. United States; 149 Ct. Cl. 8, 13 (1960). The court cannot substitute its judgment for that of the employing agency as to an employee’s qualifications, if the -agency’s conclusion is honestly arrived at, without personal bias or malice. Greenway v. United States, 175 Ct. Cl. 350, cert. denied, 385 U.S. 881 (1966). Plaintiff was a veterans preference eligible 'and as such his removal must accord with the provisions of that act, which it does. Both the CSC and the BAE found that the VA had complied with the procedural requirements for removal and absent any showing that this finding was arbitrary and capricious it must stand. Angrisani v. United States, supra, at p. 443; Houston v. United States, 156 Ct." }, { "docid": "18010186", "title": "", "text": "the Civil Service Commission has done with respect to the Lloyd-La Follette Act. The Court held, with respect to the McCarran Eider, just as it had previously done with respect to the Lloyd-La Follette Act, that a failure to comply with the regulations issued with respect to it gave an employee a right of action for his wrongful discharge. But it must be borne in mind that these regulations were issued under an Act which gave to this particular Secretary, and to none other, the discretion to discharge the employees in the State Department and only in that Department. The McCarran Eider was applicable to no other department, and it gave to no other department head authority to issue regulations relative to the discharge of its employees. Service v. Dulles does not hold that the head of a department can extend the protection of the Lloyd-La Follette Act to employees not covered by it and the regulations of the Civil Service Commission issued pursuant to it. That is what the opinion of the majority in the instant case does: It extends the protection of the Lloyd-La Follette Act to employees not covered by it nor by the regulations of the Civil Service Commission issued pursuant to it. This is beyond the power, not only of the head of a department, but also of this court. Only Congress can do so. The cases of Knotts v. United States, 128 Ct. Cl. 489, and Stringer v. United States, 117 Ct. Cl. 30, are not authority to the contrary. They hold no more than that an employee discharged in violation of the requirements of the Lloyd-La Follette Act, in one case, and of the Veterans’ Preference Act, in the other, gives an employee a right of action against the United States. This is manifestly correct. These Acts were passed for the protection of employees, and, hence, a violation of them gave an injured employee a right of action. So, also, where the regulations of the Civil Service Commission have been violated, because this Commission was authorized to issue regulations to carry into effect" }, { "docid": "23055718", "title": "", "text": "person who ought to have been given charges of incompetency and inefficiency, the details of her incompetence specified in the charges, and then separated from the service. A week would have been sufficient to give her every possible justice.”' And again she testified later in the hearings (Transcript, pp. 68-69): “It is a very simple matter to follow the present law, which Congress passed many years ago, known- as the Lloyd-La-Follette Act, in which a nonveteran employee is given his charges and allowed a reasonable time to reply, anywhere from 24 hours to 2 weeks, depending on the seriousness of the charge. His reply must be considered by the agency before he is removed. But the whole process, if the inefficiency is acute, and if he is really holding back the operation of the division in which he works, can be accomplished in about 2 weeks if the employee is -not a veteran. “One department made a complaint that they had a case where it took them 16 months to remove 1 inefficient employee. It was because they relied on the efficiency rating, and allowed that to be the subject of appeal in a grievance procedure which existed in the department, and it was finally appealed to the Efficiency Rating Board of Review.” . H.R.Rep. No. 2277, supra, n. 7, pp. 10-11, in its view of the functions of an unsatisfactory performance rating, seems to lean more in the direction urged by appellant. But even the Subcommittee says it “is not condemning the use of the provisions of either the Lloyd-LaFollette Act or section 14 of the Veterans’ Preference Act to discharge undesirable workers. Furthermore, it recognizes the necessity for such an administrative authority as these acts provide.” BAZELON, Circuit Judge (concurring in the result). The Performance Rating Act of 1950 requires that an employee be given a 90-day warning and opportunity to improve before he is rated unsatisfactory and removed. Congress did not expressly limit or qualify these requirements. Under our holding today, however, the employing agency may, in dismissing an employee, avoid the requirements of the 1950 Act" }, { "docid": "1588734", "title": "", "text": "due, until (at the least) proper procedural steps are completed * * *.\" Garrott v. United States, 169 Ct. Cl. 186, 340 F. 2d 615 (1965). See also Washington v. United States, 137 Ct. Cl. 344, 147 F. Supp. 284, petition for cert. dismissed, 355 U.S. 801 (1957); Watson v. United States, 142 Ct. Cl. 749, 162 F. Supp. 755 (1958); Shadrick v. United States, 151 Ct. Cl. 408 (1960). Defendant says that that rule is applicable only to a procedural defect or irregularity in the proceedings before the employing agency prior to removal, and is inapplicable to such a defect in the appellate proceedings before the Civil Service Commission (after the employee has been separated by his agency). This court has not hitherto made any such distinction (see Stringer v. United States, 117 Ct. Cl. 30, 50-51, 52, 90 F. Supp. 375, 379-81 (1950); Chisholm v. United States, 149 Ct. Cl. 8 (1960); Shadrick v. United States, 151 Ct. Cl. 408 (1960), but defendant argues that the distinction is nevertheless required by the statutes (the Veterans’ Preference Act, 5 U.S.C. § 863, and the Lloyd-La Follette Act, 5 U.S.C. § 652) which indicate—in the Government’s eyes — that Civil Service Commission review comes after the employee’s removal and forms no part of the removal process. We do not so read the legislation. For employees entitled to Commission review, Commission action is an integral step in the removal process and the employee is not lawfully discharged until he has had (or has waived or forfeited) his rights to review. The references in the legislation to discharge or removal by the employing agency are convenient shorthand citations to the preliminary separation which the agency can effect. These references do not mean that the agency’s action is fully effective to separate the employee for all purposes; as is often the case in judicial proceedings, an appeal or application for review by tbe Commission suspends tbe final operative effect of the initial decision. It follows that an employee who has been deprived of a procedural right by the Commission must be regarded as" }, { "docid": "2271158", "title": "", "text": "subsequent developments” are the dates the work was submitted or perhaps later dates when the work was reviewed rather than the dates the projects were assigned to plaintiff, because not until the work was submitted could plaintiff’s superior have been aware of the errors in his work. Four of the projects were submitted after April 30, 1963, and thus, in terms of sheer numbers, the charges relate primarily to developments subsequent to the effective date of his satisfactory rating. Plaintiff also argues that the October 21,1963, letter withdrawing the Advanced Warning of Unsatisfactory Rating in effect cancelled all of the charges against him. This warning was procedurally defective and thus had to be withdrawn. It is not withdrawn for any other reason. His work remained unsatisfactory, and the satisfactory rating was assigned him only because technically he could be given no other. Plaintiff also claims his removal was in violation of the Performance Rating Act, 5 U.S.O. §§ 4301-4308 (Supp. III, 1965-1967) (formerly Performance Rating Act of 1950 as amended 64 Stat. 1098, 5 U.S.C. §§ 2001-2007). Under that provision, an employee may be removed for unsatisfactory performance but only after a 90 day advance warning and a “reasonable opportunity to demonstrate satisfactory performance.” But the agency did give plaintiff a 90 day warning and an opportunity to improve. The CSC found that the agency had a series of guidance meetings after the June 20, 1963, notice to help plaintiff improve his work and apprise him of the caliber of work that was expected of him. In any event, plaintiff was removed under 5 U.S.C. § 7512 (Supp. III, 1965-1967), (Veterans’ Preference Act) for specified inefficiencies. The Performance Eating Act does not control personnel action under an independent statute. Creamer v. United States, 174 Ct. Cl. 408, cert. denied, 385 U.S. 819 (1966). As we said in Angrisani v. United States, 172 Ct. Cl. 439 (1965),at p.443: This court has stated, on numerous occasions, that the procedures of the Veterans’ Preference Act, * * * and the Lloyd-LaFollette Act, * * * govern removals for cause; that the procedures of" }, { "docid": "17988613", "title": "", "text": "or suspension without pay, and the order of removal or suspension without pay shall be made a part of the records of the proper department or agency, as shall also the reasons for reduction in grade or compensation; and copies of the same shall be furnished, upon request, to the person affected and to the Civil Service Commission. This subsection shall apply to a person within the purview of section 14 of the Veterans’ Preference Act of 1944, as amended, only if he so elects. The petition does not allege any arbitrary or capricious action in connection with plaintiff’s discharge and at the trial plaintiff’s counsel stated that the claim was based on procedural error in her performance rating. Plaintiff’s reliance on this theory, however, is misplaced. She was not discharged on the basis of her unsatisfactory performance rating, but on the basis of unsatisfactory performance of the duties of the position and for such cause as would promote the efficiency of the service, as provided for in the Lloyd-La Follette Act, supra. Furthermore, as disclosed by the facts, she was given all the notices, protections, and safeguards of the Act and the regulation promulgated thereunder, which provided: (1) Actions against employees, (i) No employee, veteran or nonveteran, shall be separated, suspended, or demoted except for such cause as will promote the efficiency of the service and for reasons given in writing. The agency shall notify the employee in writing of the action proposed to be taken. This notice shall set forth, specifically and in detail, the charges preferred against him. The employee shall be allowed a reasonable time for filing a written answer to such charges and for furnishing affidavits in support of his answer. He shall not, however, be entitled to an examination of witnesses, nor shall any trial or hearing be required except in the discretion of the agency. If the employee answers the charges, his answer must be considered by the agency. Following consideration oí tbe answer, tbe employee shall be furnished at the earliest practical date with a written decision. In the decision that removal" }, { "docid": "6014240", "title": "", "text": "nor was his work so rated. This, however, in no way affects the correctness of Labor’s action. Plaintiff was separated from his employment with OSHA under the provisions of the Veterans Preference Act, 5 U.S.C. § 7512. This statute sets out the three procedural requirements which must all be met prior to effecting a separation. The requirement which plaintiff insists was not met is not found in this statutory provision. The need for notice, and actual rating of \"unsatisfactory,” is in fact a precondition to removal under the Performance Rating Act, 5 U.S.C. §§ 4301 et seq. (1976); specifically, 5 U.S.C. § 4304(b). In insisting Labor’s action was incorrect because of its failure to first rate his work \"unsatisfactory,” plaintiff is therefore contending that to effect a separation under 5 U.S.C. § 7512, Labor must also comply with the requirements for removal under the Performance Rating Act. This is an entirely erroneous view. The Performance Rating Act and the Veterans Preference Act provide two alternative and mutually independent means of firing an employee. The procedures for removal under the Performance Rating Act are entirely separate from those of the Veterans Preference Act, the requirements of the former act being not at all relevant in a removal proceeding conducted under the latter. Armstrong v. United States, 186 Ct. Cl. 539, 544-545, 405 F. 2d 1275, 1278-1279 (1969), cert. denied, 395 U. S. 934 (1969); Angrisani v. United States, 172 Ct. Cl. 439, 442-443 (1965). For this reason, we have repeatedly rejected plaintiffs’ legal assertions that an unsatisfactory rating is a prerequisite for dismissal under 5 U.S.C. § 7512. E.g., Armstrong v. United States, 186 Ct. Cl. at 545, 405 F. 2d at 1279. There was, therefore, no reason for Labor to give plaintiff notice of \"unsatisfactory” work and to actually rate it as such. Labor’s failure to do so, therefore, does not affect the correctness of its action. As above mentioned, the only requirements which had to be met are the three set out in 5 U.S.C. § 7512. We feel Labor did comply with these requirements. While agreeing with this," }, { "docid": "15227087", "title": "", "text": "1965-1967) (formerly Performance Rating Act of 1950 as amended 64 Stat. 1098, 5 U.S.C. §§ 2001-2007). Under that provision, an employee may be removed for unsatisfactory performance but only after a 90 day advance warning and a “reasonable opportunity to demonstrate satisfactory performance.” But the agency did give plaintiff a 90 day warning and an opportunity to improve. The CSC found that the agency had a series of guidance meetings after the June 20, 1963, notice to help plaintiff improve his work and apprise him of the caliber of work that was expected of him. In any event, plaintiff was removed under 5 U.S.C. § 7512 (Supp. III, 1965-1967), (Veterans’ Preference Act) for specified inefficiencies. The Performance Rating Act does not control personnel action under an independent statute. Creamer v. United States, 174 Ct.Cl. 408, cert. denied, 385 U.S. 819, 87 S.Ct. 42, 17 L.Ed.2d 57 (1966). As we said in Angrisani v. United States, (1965) 172 Ct.Cl. 439, at p. 443: This court has stated, on numerous occasions, that the procedures of the Veterans’ Preference Act, * * * and the Lloyd-LaFollette Act, * * * govern removals for cause; that the procedures of the Performance Rating Act, * * * are not applicable to such removals. * * * An unsatisfactory performance rating is not a prerequisite to the removal of an inefficient employee. Thomas v. Ward, 96 U.S.App.D.C. 302, 225 F.2d 953, 955 (1955), cert. denied, 350 U.S. 958, 76 S.Ct. 348, 100 L.Ed. 833 (1956); Angrisani v. United States, supra; Chisholm v. United States, 149 Ct.Cl. 8, 13 (1960). The court cannot substitute its judgment for that of the employing agency as to an employee’s qualifications, if the agency’s conclusion is honestly arrived at, without personal bias or malice. Greenway v. United States, 175 Ct.Cl. 350, cert. denied, 385 U.S. 881, 87 S.Ct. 167, 17 L.Ed.2d 108 (1966). Plaintiff was a veterans preference eligible and as such his removal must accord with the provisions of that act, which it does. Both the CSC and the BAR found that the VA had complied with the procedural requirements" }, { "docid": "16230818", "title": "", "text": "things as service of notice and a written copy of the charges, a reasonable time in which to reply, and the furnishing of a written decision on the reply. In other words, no protected employee may be separated from the payroll, whether it be by removal or by suspension without pay, unless and until the agency complies with all of the procedural steps set forth in the statute. The plaintiff qualifies for the protection of this act and she has contended from the start that her rights thereunder were denied. While all of the procedural requirements of the Lloyd-La Toilette Act may have been complied with prior to plaintiff’s removal on September 14, 1956, clearly they had not been satisfied prior to the date on which she was placed on involuntary annual leave, which period of leave extended from July 12, to August 3,1956. If that action constituted a suspension without pay, her rights under the act were violated. We think there was an illegal suspension for which plaintiff should recover. It has been held that a preference eligible who is placed on involuntary annual leave during the 30-day advance notice period required by the Veterans’ Preference Act is wrongfully deprived of his pay for that period. Kenny v. United States, 134 C. Cls. 442 (1956); Taylor v. United States, 131 C. Cls. 387 (1955). Although that Act is not before us with respect to this facet of the instant case, we think an analogous situation is presented. In the Taylor case, the Government eo instante effected a removal of the petitioner from the payroll without providing him with the 30-day advance notice period of the statute. Here the Government effected an immediate suspension of Miss Hart from the payroll without providing her with the procedural steps guaranteed by the Lloyd-La Follette Act. In each case certain legal prerequisites for removing an employee from the payroll were not satisfied. Plaintiff received compensation during the period of enforced absence, but through the device of charging the check against her annual leave account she was deprived of her pay. Plaintiff had earned" }, { "docid": "3965123", "title": "", "text": "A positions are those “positions other than those of a confidential or policy-determining character for which it is not practical to examine . . .” 5 C.E.R. § 6.2. Which gives power to this court to render judgment against the united States founded, inter alia, upon any act of Congress or any regulation of an executive department. See Kent v. United States, 105 Ct. Cl. 280 (1916). Rule 9(b) of the court requires that the circumstances constituting arbitrary and capricious conduct be pleaded with particularity. Thus, a bare allegation of such conduct is not sufficient to state a cause of action. Dilatush v. United States, 151 Ct. Cl. 405 (1960). It should further be noted that “in the absence of clear evidence to the contrary, it is presumed that publie officers have properly discharged their official duties.” Harrington v. United States, 161 Ct. Cl. 432, 442 (1963). Plaintiff has filed no papers in the cause which would tend to dispel this presumption. Plaintiff concedes that he is not entitled to the procedural protections against discharge of the Veterans’ Preference Act, as amended, 5 U.S.C. § 863, or the Lloyd-La Follette Act, as amended, 5 U.S.C. § 652, since he was neither a veteran nor in the classified service. In Vitarelli v. Seaton, 359 U.S. 535 (1959), the Supreme Court pointed out that Vitarelli, an Interior Department employee who had failed to qualify under the above provisions, “could have been summarily discharged by the Secretary at any time without giving any reason . . . .” 359 U.S. at 539, cited with approval in Cafeteria Workers v. McElroy, 367 U.S. 886, 897 (1961). E.g., “Department Polley—The policy of the Department is that unfit and undesirable employees whose removal will promote the efficiency of the Federal Service are to be separated promptly in a manner which assures absolute fairness, justice and protection of the employees against arbitrary or capricious removal.” ID-SI, p. 1. Id. at 5. The \"General Provisions” section of chapter SI stated that adverse action procedures “must be followed when the agency initiates adverse action against an employee who is" }, { "docid": "6014241", "title": "", "text": "for removal under the Performance Rating Act are entirely separate from those of the Veterans Preference Act, the requirements of the former act being not at all relevant in a removal proceeding conducted under the latter. Armstrong v. United States, 186 Ct. Cl. 539, 544-545, 405 F. 2d 1275, 1278-1279 (1969), cert. denied, 395 U. S. 934 (1969); Angrisani v. United States, 172 Ct. Cl. 439, 442-443 (1965). For this reason, we have repeatedly rejected plaintiffs’ legal assertions that an unsatisfactory rating is a prerequisite for dismissal under 5 U.S.C. § 7512. E.g., Armstrong v. United States, 186 Ct. Cl. at 545, 405 F. 2d at 1279. There was, therefore, no reason for Labor to give plaintiff notice of \"unsatisfactory” work and to actually rate it as such. Labor’s failure to do so, therefore, does not affect the correctness of its action. As above mentioned, the only requirements which had to be met are the three set out in 5 U.S.C. § 7512. We feel Labor did comply with these requirements. While agreeing with this, plaintiff insists that by virtue of a \"conspiracy” against him, such compliance was a meaningless gesture. It is a well-established rule that Government officials are presumed to act in good faith in the performance of their duties. E.g., Kalvar Corp. v. United States, 211 Ct. Cl. 192, 198, 543 F. 2d 1298, 1301-1302 (1976), cert. denied, 434 U. S. 830 (1977). \"The court has always been 'loath to find to the contrary,’ and it requires 'well-nigh irrefragable proof to induce the court to abandon the presumption of good faith dealing.” Kalvar Corp. v. United States, id. By insisting his co-workers and superiors conspired, plaintiff is really alleging they acted in bad faith in the performance of their duties. We could, therefore, find for plaintiff only if he overcomes the presumption of good faith dealings. This plaintiff has failed to do. Plaintiff makes reference to a meeting attended by one of his superiors and some coworkers, plaintiff himself not being present. He would have us characterize this as \"[a] secret meeting * * * held to" }, { "docid": "23055719", "title": "", "text": "was because they relied on the efficiency rating, and allowed that to be the subject of appeal in a grievance procedure which existed in the department, and it was finally appealed to the Efficiency Rating Board of Review.” . H.R.Rep. No. 2277, supra, n. 7, pp. 10-11, in its view of the functions of an unsatisfactory performance rating, seems to lean more in the direction urged by appellant. But even the Subcommittee says it “is not condemning the use of the provisions of either the Lloyd-LaFollette Act or section 14 of the Veterans’ Preference Act to discharge undesirable workers. Furthermore, it recognizes the necessity for such an administrative authority as these acts provide.” BAZELON, Circuit Judge (concurring in the result). The Performance Rating Act of 1950 requires that an employee be given a 90-day warning and opportunity to improve before he is rated unsatisfactory and removed. Congress did not expressly limit or qualify these requirements. Under our holding today, however, the employing agency may, in dismissing an employee, avoid the requirements of the 1950 Act by proceeding under the 1912 Lloyd-LaFollette Act which authorizes a more summary dismissal. Since the Performance Rating Act is the more recent law, and affords additional protection to federal employees, I would be unwilling to infer that Congress intended such a result without express language to that effect. But I think this effect is approved by our recent decision, in Jones v. Hobby, that the Performance Rating Act does “not directly or by implication modify or supersede authority to demote personnel on charges” under pre-existing law and regulations. Though Jones involved a demotion, I find no basis for giving the Act a different effect with respect to removals. For that reason, I concur in the result here. . 64 Stat. 1099 (1950), 5 U.S.C. § 2005. . 37 Stat. 555 (1912), as amended, 62 Stat. 355 (1948), 5 U.S.C. § 652. . 96 U.S.App.D.C. -, 223 F.2d 345." }, { "docid": "11100316", "title": "", "text": "annual performance ratings. The old measure of “a current performance rating of ‘Satisfactory’ or better” (emphasis added) was deliberately dropped, and a new standard substituted which was wholly outside the structure of the Performance Eating Act (and its gradings of “outstanding”, “satisfactory”, and “unsatisfactory”). With the cutting of the connection to the Performance Eating Act, the definitions and requirements of that statute no longer had an impact on in-grade advances. As utilized in that area, the measurement standards of the Board of Veterans Appeals did not comprise a “perform ance-rating plan” within the 1950 Act, but, rather, independent criteria with another aim. This court has several times rejected claims that one provision or another of the Performance Hating Act controls federal personnel action under an independent statute. Misuraca v. United States, 185 Ct. Cl. 387, 394 (1956); De Busk v. United States, 132 Ct. Cl. 790, 796-97 (1955), cert. denied, 350 U.S. 988 (1956); Athinson v. United States, 144 Ct. Cl. 585, 596-98 (1959); Chisholm v. United States, 149 Ct. Cl. 8, 11-13 (1960); Allen v. United States, 155 Ct. Cl. 598, 600 (1961); Begendorf v. United States, 169 Ct. Cl. 293, 297, 340 F. 2d 362, 365 (1965). The present case is another instance in which that Act, if confined to its proper scope, must be held irrelevant to a transaction and proceeding governed by separate legislation. 2. Plaintiff’s second assault on the denial of the increase is that he was deprived of his right under Section 14 of the Veterans’ Preference Act, 5 U.S.C. § 863 (1964 ed.), to a 30-day notice. The argument is in three steps (each of which defendant disputes): (a) under the 1962 Act, the Civil Service Commission regulations, and the Veterans Administration’s own regulations, plaintiff automatically became entitled to the in-grade raise at the end of the period (June 23, 1963) unless he was properly notified in writing, before that time, that he was not to receive the benefit,’ (b) he did not receive such written notification until June 26, 1963 — three days too late; and (c) it follows that, when he" }, { "docid": "22537117", "title": "", "text": "the interpretation of the provisions of this part and the other laws and regulations relevant to the conduct of OEO employees. The , General Counsel is designated as OEO counselor for this purpose.\" The Civil Service Commission regulations governing procedures for adverse actions implement, in addition to the Lloyd-La Follette Act, the Veterans’ Preference Act of 1944 and Executive Order No. 11491. The Veterans^ Preference Act, Act of June 27, 1944, c. 287, 58 Stat. 387, imposed procedural requirements for processing adverse actions in addition to those imposed by the Lloyd-La Follette Act. Those additional requirements include an opportunity for the employee to respond orally or in writing to the charges on which his dismissal is based; the Veterans’ Preference Act also authorizes Civil Service Commission appeals from adverse agency decisions. See 5 U.. S. C. § 7701. The Act itself applies only to veterans'óf military service, 5 IT. S. C. §§2108, 7511, but Executive Order No. 11491, printed in note following 5 IT. S. C. § 7301, extends the Act’s protections to all nonpreference eligible employees in the classified service. 5 CFR §752.202 (a). Section 752.202 (a) provides: “(a)'Notice of proposed adverse action. (1) Except as provided in paragraph (c) of this section, an employee' against whom adverse action is sought is entitled to at least 30 full days’ advance written notice stating any and all reasons, specifically and in detail, for the proposed action. “(2) Subject to the provisions of -subparagraph ..(3) of this paragraph, the material on which the notice is based arid which is relied' on to support the reasons in that 'notice, including statements of •witnesses, documents, and investigative reports or extracts there-. from, shall be assembled and made available to the employee for ‘his review. . The notice shall inform the employee where he may ■review that material. “1(3) Material which cannot be disclosed to the employee, or to his rdesignated physician under § 294.401 ,of this chapter, may not be used by an agency to support the reasons in the notice.” .5 CFR § 752.202/(b). Section 752.202 (b) provides: “(b) Employee’s answer. Except" }, { "docid": "15227086", "title": "", "text": "think that the critical dates for determining whether the incidents “relate primarily to subsequent developments” are the dates the work was submitted or perhaps later dates when the work was reviewed rather than the dates the projects were assigned to plaintiff, because not until the work was submitted could plaintiff’s superior have been aware of the errors in his work. Four of the projects were submitted after April 30, 1963, and thus, in terms of sheer numbers, the charges relate primarily to developments subsequent to the effective date of his satisfactory rating. Plaintiff also argues that the October 21, 1963, letter withdrawing the Advanced Warning of Unsatisfactory Rating in effect cancelled all of the charges against him. This warning was procedurally defective and thus had to be withdrawn. It is not withdrawn for any other reason. His work remained unsatisfactory, and the satisfactory rating was assigned him only because technically he could be given no other. Plaintiff also claims his removal was in violation of the Performance Rating Act, 5 U.S.C. §§ 4301-4308 (Supp. III, 1965-1967) (formerly Performance Rating Act of 1950 as amended 64 Stat. 1098, 5 U.S.C. §§ 2001-2007). Under that provision, an employee may be removed for unsatisfactory performance but only after a 90 day advance warning and a “reasonable opportunity to demonstrate satisfactory performance.” But the agency did give plaintiff a 90 day warning and an opportunity to improve. The CSC found that the agency had a series of guidance meetings after the June 20, 1963, notice to help plaintiff improve his work and apprise him of the caliber of work that was expected of him. In any event, plaintiff was removed under 5 U.S.C. § 7512 (Supp. III, 1965-1967), (Veterans’ Preference Act) for specified inefficiencies. The Performance Rating Act does not control personnel action under an independent statute. Creamer v. United States, 174 Ct.Cl. 408, cert. denied, 385 U.S. 819, 87 S.Ct. 42, 17 L.Ed.2d 57 (1966). As we said in Angrisani v. United States, (1965) 172 Ct.Cl. 439, at p. 443: This court has stated, on numerous occasions, that the procedures of the Veterans’" }, { "docid": "22967982", "title": "", "text": "the duties of a position has been an accepted basis and, indeed, Chapter 75 provided the only framework for disciplinary action for performance reasons prior to the CSRA amendments to Chapter 43. A formal system of periodic rating of a federal employee’s work performance has long been part of civil service procedures. The pre-1978 provisions of Chapter 43 required an agency to rate the overall work performance of an employee as “satisfactory,” “unsatisfactory,” or “outstanding.” 5 U.S.C. § 4301 et seq. (1976). A performance rating of “unsatisfactory” was stated to be “a basis for removal.” 5 U.S.C. § 4304(b) (1976). Before rating an employee “unsatisfactory,” an agency was required to give the employee 90 days warning and a reasonable opportunity to improve. An “unsatisfactory” rating was reviewable through review procedures in the agencies and the Civil Service Commission. A provision relating to removal based on an “unsatisfactory” rating has been part of the evaluation chapter since the Performance Rating Act of 1950, codified at 5 U.S.C. § 2001 et seq. (1952). The 1950 statute stated that an “unsatisfactory” performance rating “shall serve as a basis for removal.” 5 U.S.C. § 2005 (1952). The provision was interpreted by some agencies as providing an independent basis for removal. However, that presumption was short-lived. The U.S. Court of Claims, as well as other courts, held that it did not. After an “unsatisfactory” rating was upheld through review procedures, an agency could use the rating “as a basis for removal” only by thereafter taking action “for cause” under Chapter 75 (or Chapter 14 of the Veterans Preference Act, if applicable). The courts were also confronted with a question similar to that presented in this appeal: Were the rating procedures in Chapter 43 superimposed on actions under Chapter 75, where the basis for the adverse action was performance-based? In a series of decisions, the courts held that the provisions for rating employees as part of the comprehensive system for promoting efficiency in the government service “did not directly or by implication modify or supersede the authority of the appropriate officials to demote [or remove] under" }, { "docid": "22119389", "title": "", "text": "Act or the Veterans’ Preference Act, simply because some of the requirements of the Performance Rating Act, 5 U.S.C. § 2001 et seq. (1958), had not been followed. In Angrisani v. United States, 172 Ct. Cl. 439, 443 (1965), the plaintiff argued that since he held a “satisfactory” rating he could not be discharged on 30 days’ notice since he did not receive the 90-day warning required by section 2005 of the Performance Rating Act of 1950, when an employee’s rating is changed from satisfactory to unsatisfactory. The court held that the PRA is distinct from those other federal personnel statutes that set the standards for when a federal employee may be discharged. When the employee receives the procedural protections itemized in the Lloyd-La Follette Act or the Veterans’ Preference Act, he has no room for complaint. Accord, Armstrong v. United States, 186 Ct. Cl. 539, 405 F. 2d 1275, cert. denied, 395 U.S. 934 (1969); Creamer v. United States, 174 Ct. Cl. 408, 414, cert. denied, 385 U.S. 819 (1966). Since the plaintiff in the case at hand has received the procedural guarantees to which he is entitled, the fact that the 90-day letter differed from the 30-day letter is immaterial. The requirements of 5 U.S.C. § 7512 (Supp. III, 1965-67) stand on their own, and have been met in this case. While plaintiff may have been misled by the differences be tween the letters, he was not prejudiced with respect to the rights guaranteed by the pertinent statutes. Therefore, this ground for error must also be denied. Plaintiff contends, finally, that the penalty of discharge was too harsh in this case in light of his prior satisfactory ratings and 32 years of Government service. This court has stated on many occasions that the measure of the penalty is within the discretion of the agency. Birnholz v. United States, 199 Ct. Cl. 532 (1972); Heffron v. United States, 186 Ct. Cl. 474, 484, 405 F. 2d 1307, 1312 (1969); Liotta v. United States, 174 Ct. Cl. 91, 96 (1966); De Nigris v. United States, 169 Ct. Cl. 619, 625" } ]

[ { "docid": "23685039", "title": "", "text": "the condition of the bottom of the barge at the time of delivery to the respondents. Libelants filed a libel against the King Paint Manufacturing Company, which, in turn pleaded in the subcharterer, the Simmons Transportation Company. Libelants’ theory is that they are entitled to succeed for breach of an express covenant to return the barge in the same condition as received, with the usual wear and tear excepted. This barge was demised to the King Paint Manufacturing Company, which, so far as the libelant is concerned, had exclusive possession, and may therefore be held as the bailee subject to the liability thus imposed. In the Sun Printing & Publishing Ass’n v. Moore, 183 U. S. 642, at page 654, 22 Sup. Ct. 240, at page 245 (46 L. Ed. 366), Justice White said: “It is elementary that, generally speaking, the hirer in a simple contract of bailment is not responsible for the failure to return the thing hired, when it has been lost or destroyed without his fault. Such is the universal principle. This rule was tersely stated by Mr. Justice Bradley in Clark v. United States, 95 U. S. 539 [24 L. Ed. 518], where it was said (p. 542): ‘A bailee for hire is only responsible for ordinary diligence and liable for ordinary negligence in the care of the property bailed. This is not only the common law, but the general law on the subject [citing authorities].’ ” Where, by contract of bailment, the hirer has either expressly or by fair implication assumed the absolute obligation to return, even although the thing hired has been lost or destroyed without his fault, the contract embracing such liability is controlling, and must be enforced according to its terms. A bailee who assumes but the common-law liability is exempt from liability for loss of the consigned goods arising from inevitable accident. But the bailee may, however, enlarge his responsibility by contract, express or fairly implied, and render himself liable for the loss by destruction of the goods committed to his care. The bailment or compensation to be received therefor being" } ]

[ { "docid": "23389309", "title": "", "text": "Son, Inc., the wharfinger (which it impleaded as a party to the action) in furnishing the craft with an unsafe berth and in discharging her in an improper and negligent manner. The court entered an interlocutory decree dismissing the petition impleading the wharfinger, and holding the charterer responsible for the injuries and liable for damages. On the charterer’s appeal all parties appeared and tried the case de novo. The John Twohy, 255 U. S. 77, 41 S. Ct. 251, 65 L. Ed. 511. The oral charter of a seow thus manned being treated as a demise, the charterer is not an insurer, Simmons Transportation Company v. Wright & Cobb Lighterage Co. (D. C.) 290 F. 454, but is subject to the law of bailments for hire. Mulvaney v. King Paint Mfg. Co. (C. C. A.) 256 F. 612. As a bailee, he is charged with the duty of ordinary care and is liable for negligence resulting from a breach of that duty and for nothing more. The Eureka No. 70 (C. C. A.) 15 F.(2d) 366, 1926 A. M. C. 1668; Simmons Transportation Co. v. Wright & Cobb Lighterage Co. (D. C.) 290 F. 454; Hildebrandt v. Flower Lighterage Co. (D. C.) 277 F. 436; Moran Towing & Transportation Co. v. Raritan Copper Works, 41 F.(2d) 255, 1924 A. M. C. 696; C. F. Harms Co. v. Upper Hudson Stone Co. (C. C. A.) 234 F. 859; C. F. Harms Co. v. Turner Const. Co. (D. C.) 290 F. 612; The Junior (C. C. A.) 279 F. 407, 408. Therefore this, action is for damages based on the charterer’s negligence. There is no dispute about the law thus far. The trouble arises in respect to the proof of the charterer’s negligence, that is, on whom, in a suit on a charter of this kind, rests the burden of proof and what is the measure of proof. The \"burden of proving negligence is upon the owner — the one asserting it. But he is not required in his opening as in other negligence cases to prove the specific acts which establish" }, { "docid": "22250358", "title": "", "text": "or gouge, just above one end of the missing plank, about three inches wide and a half inch deep, which could have been made by a descending blow that, if carried below the bilge log, would strike the end of the plank, and might loosen it from its seat. The barge had been repaired fifteen years before, but it did not appear how old the plank was; it was spiked to the bilge-log and had been torn away, leaving some of the spikes in position. Nobody could explain how the plank had been loosened, or whether it was tom off in raising the barge, though obviously she had suffered some damage before she settled and sank. The plaintiff sued at law upon the bailment, charging only a failure to return in good condition, reasonable wear and tear excepted; the answer denied some of the allegations, but pleaded no defence. Upon the trial the plaintiff proved the delivery and return in bad condition and rested. Strictly the complaint was bad on its face; the bailee can bo held only for Ms negligence in the case of a demised barge. Harms Co. v. Upper Hudson Stone Co., 234 F. 859 (C. C. A. 2); The Junior, 279 F. 407 (C. C. A. 2). Indeed even a promise to return in good condition imposes no greater obligation, at least in this circuit [Mulvaney v. King Paint Co. (C. C. A.) 256 F. 612, 615; Wandell v. New Haven Trap Rock Co. (C. C. A.) 285 F. 339; Berwind White Coal Mining Co. v. U. S. (C. C. A.) 15 F.(2d) 366]; though whether it places the burden of proof upon the bailee to excuse his default has apparently never been decided. The defect in the complaint probably arises from confusing a sufficient prima facie case with, a sufficient pleading; it is common in the admiralty. But it is nevertheless a defect (Claffin v. Meyer, 75 N. Y. 260, 264, 31 Am. Rep. 467), because a party must plead all he must prove, and he must prove the fault [Taylor Bros. Lumber Co. v." }, { "docid": "23450538", "title": "", "text": "admiralty rule for division of damages, awarded Connecticut, as subrogee of Tidewater, the sum of $3,840.43, that being one-half of the amount Connecticut had paid to its insured, Tidewater. Both Connecticut and Richmond appeal from this portion of the judgment. In its libel for the damages to the McGeeney, Richmond relies upon the familiar rule in the law of bailments that a prima facie presumption of negligence on the part of the bailee arises from the bail- or’s proof that the bailed article was delivered in good condition and was returned damaged, or not returned at all. Seaboard Sand & Gravel Corporation v. Elmhurst Contracting Co., 2 Cir., 159 F.2d 860; The C. W. Crane, 2 Cir., 155 F.2d 940. Applying this principle, Richmond asserts that it is entitled to a verdict since it has proved that the McGeeney was in seaworthy state when delivered and that Tidewater has failed to explain how the disaster occurred. It is necessary that we consider briefly the effect of this presumption. The presumption does not — as suggested by Richmond — cast upon the bailee the ultimate burden of proving how the damage occurred. Thompson v. Chance Marine Const. Co., 4 Cir., 45 F.2d 584; Cummings v. Pennsylvania R. Co., 2 Cir., 45 F.2d 152. It is a rebuttable presumption whose sole effect is to shift to the bailee the burden of proceeding with the evidence. Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U.S. 104, 111, 62 S.Ct. 156, 86 L.Ed. 89; Alpine Forwarding Co. v. Pennsylvania R. Co., 2 Cir., 60 F.2d 734, certiorari denied 287 U.S. 647, 53 S.Ct. 93, 77 L.Ed. 559. There are, in general, two ways in which the bailee may rebut the presumption. He may show either how the disaster in fact occurred and that this was in no way attributable to his negligence, or that he exercised the requisite care in all that he did with respect to the bailed article so that, regardless of how the accident in fact transpired, it could not have been caused by any negligence on his part." }, { "docid": "22250360", "title": "", "text": "Sunset Lighterage Co., 43 F.(2d) 700, 702 (C. C. A. 2)]. Since however the defendant has not raised the • question, we proceed as though the complaint had alleged that the bailee’s default was due to its neglect. The bailor, upon proving the bailment and injury, is entitled to the benefit of a presumption of fault which the bailee must meet by showing, either how the barge was injured, or that however-that was, it was not due to his neglect. Cummings v. Pennsylvania R. Co., 45 F.(2d) 152 (C. C. A. 2); Schoonmaker Conners Co. v. Lambert Transp. Co., 268 F. 102 (C. C. A. 2). The second alternative requires proof of all that the defendant has done with regard to it. In the case at bar the defendant proved that on the trip from Greenville to Brooklyn nothing untoward happened, thus covering so much of its custody. To prove that it was not at fault before the trip began it relied upon the bargee, who said that he had been always aboard during the day, and that while he was there the barge had not collided with anything that could have loosened the plank; that he used to pump her out every eight or fifteen days unless he found occasional water in her at other times; but that ordinarily he did not stay on her at night. It was not shown that he had been on her the. night before the accident; and he could not remember whether he had been in her hold that morning or the morning before. This evidence' did not exhaust all the possibilities, or prove that the barge had not been injured while in the defendant’s custody. It replies that if the plank had been so far loosened before the barge set out that ordinary towing would sink her, she would have made enough water for the bargee to discover. But this it did not prove; it by no means follows a priori, and indeed the plaintiff put in evidence to the contrary. For all we know, a plank might be so loosened that" }, { "docid": "7699913", "title": "", "text": "draft, when the cargo was put on board. In other words, she was then unseat worthy. It does not necessarily follow that she was so when chartered to the Hedger Company, but that was only two days before and the seowman testified that nothing had happened to his scow during the intervening time. The owner has the burden of proving seaworthiness when the barge was delivered under her charter. Taylor Bros. Lumber Co. v. Sunset Lighterage Co., 43 F.(2d) 700 (C. C. A. 2). We agree with the District Court that the C'ullen Company has not carried that burden. Hence its libo] against the Hedger Company and tho petition impleading Port Fueling Company wore rightly dismissed, for, the damage to the scow was not proven to have been caused by any fault on the part of the charterer or the stevedores but was due to her own unseaworthiness. Passing now to the limitation proceeding, the question arises whether the Hedger Company as bailee of the cargo can recover for its loss upon the Cullen Company’s breach of warranty of seaworthiness. Pendleton v. Benner Line, 246 U. S. 353, 38 S. Ct. 330, 62 L. Ed. 770, so decided, where the libelant, the, charterer, was liable for the shipper’s loss and was suing for tho cargo underwriter. The present ease will bo controlled by that authority provided tho Hedger Company is shown to he liable to the cargo owner, Grasselli Chemical Company. While it does not definitely appear what were the relations between the Hedger Company and the Grasselli Company, it was proved that the former agreed to carry the cargo- for tho latter and prima facie this made it liable for the loss. Taylor Bros. Lumber Co. v. Sunset Lighterage Co., supra. The lighterage contract implies a warranty that the lighters to be furnished under it shall he seaworthy. The Loyal, 204 F. 930 (C. C. A. 2); The Jungshoved, 290 F. 733 (C. C. A. 2). If there were any express conditions in the contract which would excuse the Hedger Company as against .the cargo owner, they do not" }, { "docid": "22383929", "title": "", "text": "2d 248, 251; Scrutton on Charter Parties and Bills of Lading (14th ed.) 105. Whether in such circumstances the vessel has the status of a private bailee is of significance only in determining whose is the burden of persuasion. Wherever the burden rests, he who undertakes to carry it must do more than create a doubt which the trier of fact is unable to resolve. The Edwin I. Morrison, supra, 212; The Folmina, supra, 363; Schnell v. The Vallescura, supra. The English courts, after some obscurity of treatment, see Watson v. Clark, 1 Dow 336, have reached the same conclusion. Pickup v. Thames Insurance Co., 3 Q. B. D. 594; Ajum Goolam Hossen & Co. v. Union Marine Insurance Co., [1901] A. C. 362, 366; Lindsay v. Klein, [1911] A. C. 194, 203, 205; see Constantine S. S. Line v. Imperial Smelting Corp., [1941] 2 All Eng. 165, 191-92. Proof of the sinking of the barge aided petitioner, but did not relieve it from sustaining the burden of persuasion when all the evidence was in. This Court, in the case of private bailments, has given like effect to the rule that the unexplained failure of the bailee to return the bailed goods is prima facie evidence of his breach of duty, Southern Ry. Co. v. Prescott, supra, 640, and cases cited; see Chesapeake & Ohio Ry. Co. v. Thompson Mfg. Co., 270 U. S. 416, 422; and the lower federal courts have applied, correctly we think, the same rule with respect to proof of unseaworthiness by the shipper where the vessel has not assumed the obligation of a common carrier. Kohlsaat v. Parkersburg & M. Sand Co., supra, 285; Robert A. Munroe Co. v. Chesapeake Lighterage Co., 283 F. 526; The Nordhvalen, supra; Tomkins Cove Stone Co. v. Bleakley Co., supra; Delaware Dredging Co. v. Graham, supra, 854. This is but a particular application of the doctrine of res ipsa loquitur, which similarly is an aid to the plaintiff in sustaining the burden of proving breach of the duty of due care but does not avoid the requirement that upon" }, { "docid": "23387212", "title": "", "text": "the same condition she was in when she was taken over, but that she was indeed in a very bad condition. As the charter party contained a covenant wherein it was agreed that the scow was to be returned in like condition as on delivery, reasonable wear and tear excepted, the liability of the respondent is of course beyond any question. The difficulty in the case arises over the relation of the Acme Steamship Corporation to the matter, and is due to the fact that, after the respondent took over the scow under its chartlr with the libelant, it in turn subchartered her to the Acme Steamship Corporation, and in doing so failed through carelessness to exact of the latter a covenant for the return of the boat in the same condition as she was in on delivery, reasonable wear and tear excepted. It is settled law that, where a charter party contains no covenant for the return of a vessel in good order and condition, there is no liability for injury to the vessel without proof of negligence. C. F. Harms Co. v. Upper Hudson Stone Co., 234 Fed. 859, 148 C. C. A. 457. The liability of a charterer depends upon the terms of the charter party, and if the injuries complained of are not within the terms of the charter party then liability will turn upon whether the damages are attributable to the charterer’s negligence. Worrall v. Davis Coal & Coke Co., 122 Fed. 436, 58 C. C. A. 418; W. H. Beard Dredging Co. v. Hughes (D. C.) 133 Fed. 680. In determining the question of negligence it becomes necessary to examine into the facts as they are disclosed upon the record. When the boat was chartered to the Lambert Transportation Company she was, as we have said, in good condition; and the record discloses that she was in good condition when the Lambert Transportation Company subchartered her to the Acme Steamship Corporation. When she was returned by the latter, her decks had been eaten away and badly damaged. The court below found that the damage" }, { "docid": "20958380", "title": "", "text": "McCrory Stores Corp., 305 N.Y. 140 .[111 N.E.2d 421, 37 A.L.R.2d 698]).” As a bailee, respondent was liable only for negligent injury to the scow. Even assuming that respondent had made an express promise to return the scow in the same condition as when received, wear and tear excepted, no greater obligation would be imposed than the exercise of ordinary care. See, e. g., Alpine Forwarding Co. v. Pennsylvania Railroad Co., 2 Cir., 60 F.2d 734, cer-tiorari denied 287 U.S. 647, 53 S.Ct. 93, 77 L.Ed. 559; Berwind White Coal Mining Co. v. United States, 2 Cir., 15 F.2d 366. In such a case, the express contractual obligation and the common law duty would be one and the same and it seems quite clear that under New York law the action would still be for negligence for time limitation purposes. It appears on the face of the libel, therefore, that this suit was commenced more than one year after the three year period prescribed by the applicable New York statute of limitations had elapsed. It is next necessary to consider whether the facts pleaded provide a sufficient indication that on the trial libelant may be able to prove the absence of laches by establishing that the delay was excusable and that libelant was not prejudiced thereby. See Oroz v. American President Lines, 2 Cir., 259 F.2d 636, certiorari denied 359 U.S. 908, 79 S.Ct. 584, 3 L.Ed.2d 572. Libelant makes the following allegations in its libel in an attempt to negative laches: “The subject matter of libelant’s cause of action was the subject of numerous settlement discussions and negotiations between the libel-ant or libelant’s proctors and the respondent or the Insurance Company of North America, respondent’s underwriters. “Voluminous correspondence, commencing May 7th, 1956 was had among these parties in an attempt to resolve this matter without litigation. The respondent has been on notice since May 7th, 1956 of libel-lant’s claim against it.” Respondent on the other hand asserts in its exceptive allegations that no claim was submitted either against it or its underwriter prior to libelant’s initiation of an action" }, { "docid": "23389312", "title": "", "text": "from the trend of decisions that the presumption of the charterer’s negligence does not wait upon “the absence of exculpatory evidence” to arise but arises in the beginning from the fact that a boat, seaworthy when delivered, was injured while in possession of the charterer and cannot be returned in good condition. That fact, without' more, “establishes a prima facie case of fault, and places on the (charterer) the duty of rebutting the prima facie ease — that ’ is, to explain the situation,” C. F. Harms Co. v. Turner Construction Co. (D. C.) 290 F. 612, 613; Hildebrandt v. Flower Lighterage Co. (D. C.) 277 F. 436, and show that there was no fault or negligence at all or, if any, it was that of another, for instance, and, as ■claimed here, it was that of the owner’s scow captain and therefore imputable to the owner, The Junior (C. C. A.) 279 E. 407, or that of tee wharfinger. If the charterer’s evidence in explanation of the injuries is sufficient to overcome tee presumption of his negligence arising out of a charter of this character by proving specifically how the injuries occurred or generally his handling of the boat, he will be relieved of his implied undertaking to return the boat in good condition, unless the owner, on whom will then rest the burden of proving the charterer’s negligence otherwise than by the presumption, produces evidence that outweighs the rebuttal evidence. C. F. Harms Co. v. Turner Const. Co. (D. C.) 290 F. 612, 614; Hildebrandt v. Flower Lighter-age Co. (D. C.) 277 F. 436; Mulvaney v. King Paint Mfg. Co. (C. C. A.) 256 F. 612, 615; Schoonmaker, Conners Co. v. Lambert Transp. Co. (C. C. A.) 268 F. 102; O’Brien Bros. v. New York (C. C. A.) 9 F.(2d) 542; Terry & Tench Co. v. Merritt & Chapman D. & W. Co. (C. C. A.) 168 F. 533. If, however, the evidence which the charterer offers to rebut the presumption should not in the opinion of the trial court excuse him, the presumption of negligence which the" }, { "docid": "23389308", "title": "", "text": "less ordinary wear and tear. Schoonmaker, Conners Co. v. Lambert Transportation Co. (C. C. A.) 268 F. 102. After loading the scow up the river with crushed stone the charterer took her to Jersey City and placed her in a berth of the cargo consignee, Yan Keuren & Son, Inc., the wharfinger. She was then in good condition, so far as could be judged from her outer structure, and also in good condition on the next day when the consignee began to unload and after a part of the cargo had been discharged. On the third day, before discharging was resumed, the captain went below and discovered injuries to her inner structure. Later, the owner filed this libel against the charterer on its implied warranty of return in good condition. The charterer by its answer denied fault or negligence on its part and asserted that the injuries were due to fault or negligence of the owner’s servant — the “captain” — in charge of the seow, or to fault or negligence of Yan Keuren & Son, Inc., the wharfinger (which it impleaded as a party to the action) in furnishing the craft with an unsafe berth and in discharging her in an improper and negligent manner. The court entered an interlocutory decree dismissing the petition impleading the wharfinger, and holding the charterer responsible for the injuries and liable for damages. On the charterer’s appeal all parties appeared and tried the case de novo. The John Twohy, 255 U. S. 77, 41 S. Ct. 251, 65 L. Ed. 511. The oral charter of a seow thus manned being treated as a demise, the charterer is not an insurer, Simmons Transportation Company v. Wright & Cobb Lighterage Co. (D. C.) 290 F. 454, but is subject to the law of bailments for hire. Mulvaney v. King Paint Mfg. Co. (C. C. A.) 256 F. 612. As a bailee, he is charged with the duty of ordinary care and is liable for negligence resulting from a breach of that duty and for nothing more. The Eureka No. 70 (C. C. A.) 15 F.(2d)" }, { "docid": "20958379", "title": "", "text": "statute of limitations governing actions upon express or implied contract obligations, N.Y. Civil Practice Act § 48(1), applies in this case, while respondent asserts that the three year limitation for actions to recover damages for negligent injury to property, N.Y. Civil Practice Act, § 49(6), controls the present suit. The decision of a New York Appellate Term for the First Department in Cleary Brothers v. Baltimore & Ohio R. R. Co., 1954 A.M.C. 471, forecloses the issue in favor of respondent. In that case, as in this, the complaint alleged merely that the scow was delivered by the owner to the charterer in good condition and was returned in a damaged condition. The court held the action barred by the three year limitation for negligence claims, stating: “Although plaintiff does not allege that the damage which is the basis of the suit was caused by defendant’s negligence, the common law duty and the implied contractual obligation are one and the same, and the action is for negligence at least for time limitation purposes (Blessington v. McCrory Stores Corp., 305 N.Y. 140 .[111 N.E.2d 421, 37 A.L.R.2d 698]).” As a bailee, respondent was liable only for negligent injury to the scow. Even assuming that respondent had made an express promise to return the scow in the same condition as when received, wear and tear excepted, no greater obligation would be imposed than the exercise of ordinary care. See, e. g., Alpine Forwarding Co. v. Pennsylvania Railroad Co., 2 Cir., 60 F.2d 734, cer-tiorari denied 287 U.S. 647, 53 S.Ct. 93, 77 L.Ed. 559; Berwind White Coal Mining Co. v. United States, 2 Cir., 15 F.2d 366. In such a case, the express contractual obligation and the common law duty would be one and the same and it seems quite clear that under New York law the action would still be for negligence for time limitation purposes. It appears on the face of the libel, therefore, that this suit was commenced more than one year after the three year period prescribed by the applicable New York statute of limitations had elapsed. It" }, { "docid": "22250359", "title": "", "text": "bo held only for Ms negligence in the case of a demised barge. Harms Co. v. Upper Hudson Stone Co., 234 F. 859 (C. C. A. 2); The Junior, 279 F. 407 (C. C. A. 2). Indeed even a promise to return in good condition imposes no greater obligation, at least in this circuit [Mulvaney v. King Paint Co. (C. C. A.) 256 F. 612, 615; Wandell v. New Haven Trap Rock Co. (C. C. A.) 285 F. 339; Berwind White Coal Mining Co. v. U. S. (C. C. A.) 15 F.(2d) 366]; though whether it places the burden of proof upon the bailee to excuse his default has apparently never been decided. The defect in the complaint probably arises from confusing a sufficient prima facie case with, a sufficient pleading; it is common in the admiralty. But it is nevertheless a defect (Claffin v. Meyer, 75 N. Y. 260, 264, 31 Am. Rep. 467), because a party must plead all he must prove, and he must prove the fault [Taylor Bros. Lumber Co. v. Sunset Lighterage Co., 43 F.(2d) 700, 702 (C. C. A. 2)]. Since however the defendant has not raised the • question, we proceed as though the complaint had alleged that the bailee’s default was due to its neglect. The bailor, upon proving the bailment and injury, is entitled to the benefit of a presumption of fault which the bailee must meet by showing, either how the barge was injured, or that however-that was, it was not due to his neglect. Cummings v. Pennsylvania R. Co., 45 F.(2d) 152 (C. C. A. 2); Schoonmaker Conners Co. v. Lambert Transp. Co., 268 F. 102 (C. C. A. 2). The second alternative requires proof of all that the defendant has done with regard to it. In the case at bar the defendant proved that on the trip from Greenville to Brooklyn nothing untoward happened, thus covering so much of its custody. To prove that it was not at fault before the trip began it relied upon the bargee, who said that he had been always aboard during the" }, { "docid": "23389310", "title": "", "text": "366, 1926 A. M. C. 1668; Simmons Transportation Co. v. Wright & Cobb Lighterage Co. (D. C.) 290 F. 454; Hildebrandt v. Flower Lighterage Co. (D. C.) 277 F. 436; Moran Towing & Transportation Co. v. Raritan Copper Works, 41 F.(2d) 255, 1924 A. M. C. 696; C. F. Harms Co. v. Upper Hudson Stone Co. (C. C. A.) 234 F. 859; C. F. Harms Co. v. Turner Const. Co. (D. C.) 290 F. 612; The Junior (C. C. A.) 279 F. 407, 408. Therefore this, action is for damages based on the charterer’s negligence. There is no dispute about the law thus far. The trouble arises in respect to the proof of the charterer’s negligence, that is, on whom, in a suit on a charter of this kind, rests the burden of proof and what is the measure of proof. The \"burden of proving negligence is upon the owner — the one asserting it. But he is not required in his opening as in other negligence cases to prove the specific acts which establish the charterer’s negligence. It will be enough, in the beginning at least, that he make out a prima facie ease of negligence. “He makes out a prima facie case, if he can go no further than to show that the boat was damaged during the charter period and then the burden of explanation, or, as it is sometimes said, of carrying on, lies upon the charterer. In the absence of exculpatory evidence a presumption of negligence arises against him. Wintringham v. Hayes, 144 N. Y. 1 [38 N. E. 999, 43 Am. St. Rep. 725]; Terry So Tench Co. v. Merritt & Chapman Derrick So Wrecking Co. [C. C. A.] 168 E. 533; Hasten v. Long Co. [C. C. A.] 239 F. 852; White v. Upper Hudson Co. [C. C. A.] 248 F. 893; White v. Schoonmaker Co. [C. C. A.] 265 F. 465; Schoonmaker, Conners Co. v. Lambert Transp. Co. [C. C.A.] 268 F. 102.” Moran Towing & Transp. Co. v. Raritan Copper Works, 41 F.(2d) 255, 1924 A. M. C. 696. We find" }, { "docid": "6908832", "title": "", "text": "court at first instructed the jury as follows: “Where a boat is chartered in good condition under a charter party, that requires the boat to be returned in the same condition as when received except for reasonable wear and tear, and it is returned in a damaged condition, there is a presumption of negligence against the charterer. This is, however, a disputable presumption, and it may bo overcome and overthrown by other evidence in the case which satisfies the jury to the contrary when all of the facts and circumstances in proof are considered. “If you find from a preponderance of all of the evidence that the barge was injured while in the exclusive possession of the fie-fondant, as bailee, then a presumption of negligence attaches by reason of such finding, if made, and in such event the defendant must show how the injury occurred and establish that it was free from negligence.” Of course, this went too far in placing upon the defendant the burden of showing “how the injury occurred,” for the presumption of negligence may be rebutted without necessarily doing that. To require it, would place the liability of’ the defendant, not on negligence alone as it is, Clark v. United States, 95 U. S. 539, 24 L. Ed. 518; Tomkins Cove Stone Co. v. Bleakley Transportation Co., Inc., et al. (C. C. A.) 40 F.(2d) 249, 250; Bushey v. Hedger (C. C. A.) 40 F.(2d) 417, 418, but on some added duty to prove itself omniscient respecting the injury as well as to rebut the presumption of negligence. The law on the subject was later correctly stated in the charge as follows: “If the jury find from a preponderance of all of the evidence that plaintiff’s barge was in tight, staunch, strong and seaworthy condition when delivered under charter to the Pennsylvania Railroad Company, and was damaged when returned to plaintiff, your verdict must be for the plaintiff, unless defendant shows either how the damage occurred, and, second, that none of defendant’s acts caused or contributed td that damage, or, first, everything it did with respect" }, { "docid": "23389311", "title": "", "text": "the charterer’s negligence. It will be enough, in the beginning at least, that he make out a prima facie ease of negligence. “He makes out a prima facie case, if he can go no further than to show that the boat was damaged during the charter period and then the burden of explanation, or, as it is sometimes said, of carrying on, lies upon the charterer. In the absence of exculpatory evidence a presumption of negligence arises against him. Wintringham v. Hayes, 144 N. Y. 1 [38 N. E. 999, 43 Am. St. Rep. 725]; Terry So Tench Co. v. Merritt & Chapman Derrick So Wrecking Co. [C. C. A.] 168 E. 533; Hasten v. Long Co. [C. C. A.] 239 F. 852; White v. Upper Hudson Co. [C. C. A.] 248 F. 893; White v. Schoonmaker Co. [C. C. A.] 265 F. 465; Schoonmaker, Conners Co. v. Lambert Transp. Co. [C. C.A.] 268 F. 102.” Moran Towing & Transp. Co. v. Raritan Copper Works, 41 F.(2d) 255, 1924 A. M. C. 696. We find from the trend of decisions that the presumption of the charterer’s negligence does not wait upon “the absence of exculpatory evidence” to arise but arises in the beginning from the fact that a boat, seaworthy when delivered, was injured while in possession of the charterer and cannot be returned in good condition. That fact, without' more, “establishes a prima facie case of fault, and places on the (charterer) the duty of rebutting the prima facie ease — that ’ is, to explain the situation,” C. F. Harms Co. v. Turner Construction Co. (D. C.) 290 F. 612, 613; Hildebrandt v. Flower Lighterage Co. (D. C.) 277 F. 436, and show that there was no fault or negligence at all or, if any, it was that of another, for instance, and, as ■claimed here, it was that of the owner’s scow captain and therefore imputable to the owner, The Junior (C. C. A.) 279 E. 407, or that of tee wharfinger. If the charterer’s evidence in explanation of the injuries is sufficient to overcome tee presumption" }, { "docid": "22250357", "title": "", "text": "L. HAND, Circuit Judge. The plaintiff owned a barge which it orally demised to the defendant from day to day on a per diem hire, the bailor to furnish a bargee, the bailee to pay him and use her at its pleasure, and to return her at the end of her service. There was no express promise to return in good condition. Nine months later the defendant was -towing- her, lightly laden, on the starboard side of a tug wilh a lighter outside, and two lighters on the tug’s port side, from Greenville, New Jersey, to Brooklyn. The lug liad put the lighters at their several slips, and with the barge alone was coming to her- destination, when, less than two hundred feet away, for some unknown reason she suddenly began to settle and sank. When raised, it was found that of the thwart-ships planks which formed her bottom, that nearest the stern “mud log” was gone. On the side of one of the foré and aft bilge logs there was a nine inch bruise or gouge, just above one end of the missing plank, about three inches wide and a half inch deep, which could have been made by a descending blow that, if carried below the bilge log, would strike the end of the plank, and might loosen it from its seat. The barge had been repaired fifteen years before, but it did not appear how old the plank was; it was spiked to the bilge-log and had been torn away, leaving some of the spikes in position. Nobody could explain how the plank had been loosened, or whether it was tom off in raising the barge, though obviously she had suffered some damage before she settled and sank. The plaintiff sued at law upon the bailment, charging only a failure to return in good condition, reasonable wear and tear excepted; the answer denied some of the allegations, but pleaded no defence. Upon the trial the plaintiff proved the delivery and return in bad condition and rested. Strictly the complaint was bad on its face; the bailee can" }, { "docid": "6004125", "title": "", "text": "City of New York, 16 F.(2d) 199 (2d C. C. A.). This reply should be read as a whole, to determine the intention of the parties, and due effect given to each paragraph as modifying or limiting any other. 6 R. C. L. 227.- Considered in this way, it is apparent that the seeond paragraph does not impose an insurer’s liability, but is rather the assertion of an intention to hold the city liable for such damages as would follow as a matter of law, unlimited by such an express agreement as the city had proposed. The last paragraph contains the gist of the temporary arrangement under which the scow was retained by the city, and furnishes the basis for the determination of its liability. By the terms of acceptance, the city did not become an insurer, but was liable only if negligent. The scow was to be returned in the same condition as when received, ordinary wear and tear excepted. A covenant to insure is not implied, and can only be imposed where it is found in an agreement by clear and explicit language. Wan-dell v. New Haven Trap Rock Co., 285 F. 339 (2d C. C. A.); Mulvaney v. King Paint Mfg. Co., 256 F. 612 (2d C. C. Á.). The Flannery Towing Line should likewise be exonerated. There is no evidence to justify the claim of negligence in the navigation and care of the scow after the fire started. The Joseph J. Flannery signaled for assistance and did all that could be expected of it under the circumstances. The maneuver of the tug was not an improper one. The master acted in extremis and was free from any negligence. Decree reversed, with costs. L. HAND, Circuit Judge (dissenting). I agree that it is settled, certainly in this circuit, and probably elsewhere, that a covenant to return a vessel, “reasonable wear and tear excepted,” imposes no added liability on the bailee. He may be charged only for his negligence. Whatever be the justification for giving no effect to such language, the rule is now too well settled to" }, { "docid": "21513510", "title": "", "text": "HAND, Circuit Judge (after stating the facts as above). As a bailee, the respondent would normally be liable for negligence, and for nothing more. C. F. Harms Co. v. Upper Hudson Stone Co., 234 F. 859, 148 C. C. A. 457 (C. C. A. 2). Indeed, in this circuit a covenant to redeliver in good condition, less wear and tear, adds nothing to the charterer’s obligation. Mulvaney v. King Paint Co., 256 F. 615, 167 C. C. A. 642; Wandell v. New Haven Trap Rock Co. (C. C. A.) 285 F. 339; Simmons Transportation Co. v. Wright & Cobb Co. (D. C.) 290 F. 454, affirmed (C. C. A.) 296 F. 1023. Thus, unless the clause relieved , the charterer of negligence, it was brutum fulmen. Sueh a contract was lawful; the only question is what it meant. The case is similar in principle to City of New York v. Clyde Lighterage Co., 13 F.(2d) 533 (C. C. A. 2), though the words there used were very different. We ought to give some effect to the language chosen, if we can, and, as no other can be found but to excuse the charterer’s negligence, it must have that. Each side relies on New Orleans-Belize Co. v. U. S., 239 U. S. 202, 36 S. Ct. 76, 60 L. Ed. 227; but we think it makes for the appellant. To be sure, in that case there was no demise; but the charter party contained a covenant to redeliver in good order, for which the charterer had no excuse but in the exculpatory clause. See, also, Morgan v. U. S., 14 Wall. 531, 20 L. Ed. 738. It is quite true that the opinion was at some pains to say that the charter was not a demise, which, if we are right, was irrelevant. On this the appellee bears hard, and rightly. However, it was apparently the chief point argued at bar, and courts are apt to follow counsel’s lead in such matters. In any case, we do not see how the clause can be an excuse for a breach of the" }, { "docid": "6004126", "title": "", "text": "is found in an agreement by clear and explicit language. Wan-dell v. New Haven Trap Rock Co., 285 F. 339 (2d C. C. A.); Mulvaney v. King Paint Mfg. Co., 256 F. 612 (2d C. C. Á.). The Flannery Towing Line should likewise be exonerated. There is no evidence to justify the claim of negligence in the navigation and care of the scow after the fire started. The Joseph J. Flannery signaled for assistance and did all that could be expected of it under the circumstances. The maneuver of the tug was not an improper one. The master acted in extremis and was free from any negligence. Decree reversed, with costs. L. HAND, Circuit Judge (dissenting). I agree that it is settled, certainly in this circuit, and probably elsewhere, that a covenant to return a vessel, “reasonable wear and tear excepted,” imposes no added liability on the bailee. He may be charged only for his negligence. Whatever be the justification for giving no effect to such language, the rule is now too well settled to question it any longer. Therefore, if the libelant’s letter had stood alone and had contained only the last paragraph, I should agree that the city of New York was not liable without proof of negligence. But it was preceded by this language: “We will hold the city of New York liable for all damages to our scows while under your charter.” I cannot see any substantial difference between that and the language construed in Sun P. & P. Ass’n v. Moore, 183 U. S. 643, 22 S. Ct. 240, 46 L. Ed. 366. It is true that there the vessel had been valued, and that to the extent of that valuation the charterer agreed to give security for any loss which might happen. Nevertheless, although the court regarded this as fortifying its conclusion, it would have reached the same result without the addition. Pages 655, 656 (22 S. Ct. 240). Besides, the libelant’s letter does not stand alone. The city, on December 4th, tried to get the owner to accept the risk of fire, and" }, { "docid": "7699914", "title": "", "text": "breach of warranty of seaworthiness. Pendleton v. Benner Line, 246 U. S. 353, 38 S. Ct. 330, 62 L. Ed. 770, so decided, where the libelant, the, charterer, was liable for the shipper’s loss and was suing for tho cargo underwriter. The present ease will bo controlled by that authority provided tho Hedger Company is shown to he liable to the cargo owner, Grasselli Chemical Company. While it does not definitely appear what were the relations between the Hedger Company and the Grasselli Company, it was proved that the former agreed to carry the cargo- for tho latter and prima facie this made it liable for the loss. Taylor Bros. Lumber Co. v. Sunset Lighterage Co., supra. The lighterage contract implies a warranty that the lighters to be furnished under it shall he seaworthy. The Loyal, 204 F. 930 (C. C. A. 2); The Jungshoved, 290 F. 733 (C. C. A. 2). If there were any express conditions in the contract which would excuse the Hedger Company as against .the cargo owner, they do not appear. Hence the proof was sufficient that the charterer was liable for loss of cargo due to the scow’s unseaworthiness. See The Harper No. 145, 42 F.(2d) 161 (C. C. A. 2); S. C. Loveland Co. v. Bethlehem Steel Co., 33 F.(2d) 655 (C. C. A. 3). This liability is a proper element of damage in its suit against the owner upon the latter’s covenant. Pendleton v. Benner Line, supra. There remains the question whether the Cullen Company may limit liability upon its covenant. The scow was chartered under the usual oral contract arranged by telephone. The covenant of seaworthiness is an implied covenant and the authorities are not in accord as to whether such an implied obligation is to be deemed the personal contract of the owner in such sense as to preclude limitation of liability under the doctrine declared in Pendleton v. Benner Line, 246 U. S. 353, 38 S. Ct. 330, 62 L. Ed. 770. In this circuit it has been given the same effect as an express contract. The Loyal, supra;" } ]

[ { "docid": "1598435", "title": "", "text": "ground that such an oral examination could not be had unless the applicant had first “traversed” the answer. This proceeding in error is brought to review that order. In our opinion the municipal court’s ruling was erroneous. In section 1089, D. C. Code (D. C. Code 1930, T. 24, § 287), provision is made for the filing of interrogatories in writing to be served upon a garnishee concerning any property of the defendant in his possession or any indebtedness of his to the defendant, the garnishee to file his answers thereto under oath. The section also provides that, “in addition to the answers to written interrogatories required of him, the garnishee may, on motion, be required to appear in court and be examined orally, under oath, touching any property or credits of the defendant in his hands.” In section 1095, D. C. Code (D. C. Code 1930, T. 24, § 292), provision is made for a trial of the issue in case the garnishee answers to interrogatories that he has no property or credits of the defendant in his hands, and the plaintiff traverses such answer. But the latter provision does not affect the right of the plaintiff to examine the garnishee orally under oath, under section 1089, supra. A “traverse” of the answer by the plaintiff is not a condition precedent to the exercise of that right. In Fidelity Savings Co. v. Security Savings & Commercial Bank, 55 App. D. C. 180, 3 F.(2d) 351, a similar question was before this court under section 447 and 461 D. C. Code (D. C. Code 1930, T. 24, §§ 123, 137), governing attachments before judgment. These sections correspond with sections 1089 and 1095, supra, relating to attachments after judgment, and are in similar terms thereto. The court held that a garnishee, who in an swer to interrogatories denies that it is indebted to defendant, or has any goods or credits of defendant in its possession, may, on motion, be required to appear in court for oral examination under oath touching any property or credits of defendant in its hands, under section" } ]

[ { "docid": "176563", "title": "", "text": "garnishee or stranger to the action who may make claim to the property attachment may file an answer defending against the attachment. The answer may be considered as raising an issue without any reply, and any issue of fact thereby made may be tried with a jury if any party so desires. § 16-552. Interrogatories to garnishee; oral examination. (a) In any case in which a writ of attachment is issued, then plaintiff may submit interrogatories in writing, in such form as may be allowed by the rules or special order of the court, to be served upon any garnishee, asking about any property of the defendant in his possession or charges, or indebtedness of his to the defendant at the time of the service of the attachment or between the time of service and the filing of his answers to the interrogatories. The garnishee shall file his answers, verified by a written declaration that the answers are made under the penalties of perjury, to the interrogatories within ten days after service upon him. § 16-553. Traverse of garnishee’s answers; trial of issue; costs and attorney’s fee. If a garnishee answers to interrogatories that he does not have property or credits of the defendant, or has less than the amount of the plaintiffs judgment, the plaintiff may traverse the answer as to the existence or amount of the property or credits, and the issue thereby made may be tried as provided by section 16-551. In such a case, where judgment is rendered for the garnishee, the plaintiff shall be adjudged to pay to the garnishee, in addition to the taxed costs, a reasonable attorney’s fee. If the issue is found for the plaintiff, judgment shall be rendered for him in accordance with the finding. § 16-556. Judgment against garnishee. (a) Subject to the provisions of subchapter III of this chapter, if a garnishee has admitted credits in his hands, in answer to interrogatories served upon him, or the credits have been found upon an issue made as provided by this chapter, judgment shall be entered against him for the amount" }, { "docid": "176564", "title": "", "text": "16-553. Traverse of garnishee’s answers; trial of issue; costs and attorney’s fee. If a garnishee answers to interrogatories that he does not have property or credits of the defendant, or has less than the amount of the plaintiffs judgment, the plaintiff may traverse the answer as to the existence or amount of the property or credits, and the issue thereby made may be tried as provided by section 16-551. In such a case, where judgment is rendered for the garnishee, the plaintiff shall be adjudged to pay to the garnishee, in addition to the taxed costs, a reasonable attorney’s fee. If the issue is found for the plaintiff, judgment shall be rendered for him in accordance with the finding. § 16-556. Judgment against garnishee. (a) Subject to the provisions of subchapter III of this chapter, if a garnishee has admitted credits in his hands, in answer to interrogatories served upon him, or the credits have been found upon an issue made as provided by this chapter, judgment shall be entered against him for the amount of credits admitted or found, not exceeding the amount of the plaintiffs judgment, and costs, and execution shall be had thereon not to exceed the credits in his hands. When the credits are not immediately due and payable, execution shall be stayed until they become due. (b) When the garnishee has failed to answer the interrogatories served on him or to appear and show cause why a judgment of condemnation should not be entered, judgment shall be entered against him for the whole amount of the plaintiffs judgment and costs, and execution may be had thereon. . 16 D.C. Code § 525 provides: In any form of action, where specific property has been attached and remains under the control of the court, judgment of condemnation of the property shall be entered, and as much thereof as may be necessary to satisfy the demand of the plaintiff shall be sold under fieri-facias. If the property was sold under interlocutory order of the court, the proceeds, or as much thereof as may be necessary, shall be applied" }, { "docid": "3283672", "title": "", "text": "of the attachment. Considering that there had been no traverse by the plaintiff to the answer of the garnishee, within' twenty days, as required .by the Oklahoma statute, the court concluded that all the facts and averments and the inferences ¿Reducible therefrom, stated in the answer, were to be taken as true, not only as between the garnishee and the plaintiff, but also between the plaintiff and the defendant, in determining whether property of the defendant had been levied upon, under the attachment. Upon this assumption, finding that the answer of the garnishee established that no property of the defendant had been levied upon under the attachment,- it thereupon dissolved the attachment and dismissed the suit. But this reasoning was fallacious, since it assumed that because the failure to traverse the answer of the garnishee was conclusive of his non-liability, in-the garnishment proceedings, it was therefore equally so, as between the plaintiff and defendant, in determining whether the property which had been levied upon under the attachment belonged to the defendant. But the two considerations, the liability of the garnishee under the proceedings in garnishment and the validity of the levy previously made under the attachment, were distinct and different issues. The section of the Oklahoma statute to which the court referred (Oklahoma Stat. 1893, sec. 4085) provides that the answer of the garnishee “ shall in all cases be conclusive of the truth of the facts therein stated, unless the plaintiff shall within twenty days serve upon the garnishee a notice in writing that he elects to take issue on his answer.” . It, however, can in reason be construed only as importing that the facts stated in the answer, unless traversed, should be conclusive, for the pürpose of determining'whether the garnishee was liable under the process issued against him and to which process his answer was directed. Indeed, all the facts stat,ed in the “further” answer of the gárnishee were, in legal effect, substantially irrelevant to the issue between the plaintiff and the garnishee, since they referred not to the garnishee’s liability to the defendant, but propounded a" }, { "docid": "15333007", "title": "", "text": "such summons, and the answer must be accompanied by the money or other property subject to garnishment. Ga.Code Ann. § 46-103. If the garnishee serves his answer in accordance with this statute the plaintiff must traverse the answer within 15 days after it is served or the garnishee is automatically discharged of further liability with respect to the summons so answered. Ga.Code Ann. § 46-504. It was stipulated by the parties that in each garnishment case ITT filed a timely answer to the summons of garnishment, and the answer was not traversed. The Trustee contends that if the original service of summons created a lien on Burnham’s judgment against ITT, the lien was discharged by the failure to traverse the answer. In Daniels v. Meinhard Brothers & Company, 53 Ga. 359 (1874), the plaintiff insti tuted a garnishment action against an insurance agency. The summons was answered, and the answer was not traversed. Thereafter a second summons of garnishment was served on the insurance agency. It was held that no lien on the fund held by the insurance agency was created by the first service of summons. The Court said: “When the garnishees answered the first summons and there was no traverse of that answer, they were discharged from any liability under that proceeding.' From the facts shown by the record, they could have made no other answer than the one they did. They had no money or effects of the principal debtor in their hands. Those proceedings being thus ended or determined, another garnishment was served upon them, and under this, money was returned into court. No lien under the first garnishment could attach to this fund because it was not a garnishment pending; it was functus of-ficio, else there was no necessity for the second garnishment.” 53 Ga. at 363. The instant case may be distinguished from Daniels. Each of the garnishment cases involved herein was stayed pending resolution of the appellate proceedings in Burnham’s case against ITT. Consent orders concerning the stay were entered in each garnishment suit. Both consent orders contain the following provision: “In order" }, { "docid": "14275557", "title": "", "text": "145, 284 F.2d 279 (1960). . D.C.Code, § 16-303 (1951) provides in part: “In addition to the answers to written interrogatories required of him, the gar- nishee may, on motion, be required to appear in court and be examined orally under oath touching any property or credits of the defendant in his hands.” We long since noted that such an oral examination “may be necessary for the information of the creditor before he is; able to decide -whether he should traverse the answer of the garnishee.” Fidelity Savings Co. v. Security Savings & Commercial Bank, 55 App.D.C. 180, 181, 3 F.2d 351, 352 (1925). . We have held that a traverse of the answer is not a condition precedent to the exercise of the right to require oral examination. Flynn v. Potomac Electric Power Co., 60 App.D.C. 82, 47 F.2d 978 (1931). . Fidelity Savings Co. v. Security Savings & Commercial Bank, supra note 2. . D.C.Code, § 16-317 (1951); Young v. Nicholson, 70 App.D.C. 351, 352, 107 F.2d 177, 178 (1939) ; Ourisman Chevrolet v. Pohanka Service, 138 A.2d 668 (D.C.Mun.App.1958). . Also introduced was the signature card of the firm which included the signature of Albert H. Greene. Appellants point to the printed agreement on the signature card “that deposits of checks on other banks, though credited, cannot be drawn against until said checks have been collected * * * * ” Whatever weight may be attached to that agreement for other purposes, it is clear that a bank may waive the limitation. Lowrance Motor Company v. First National Bank, 238 F.2d 625, 628 (5 Cir. 1956); South End Bank & Trust Co. v. Nasin, 147 Conn. 215, 219, 220, 158 A.2d 591, 593 (1960). . The “fee” was purportedly explained, not through testimony from Greene, but in the course of colloquy. Greene did not take the stand subject to cross-examination as to appellants’ claims and Greene’s explanation with reference thereto. . §§ 12 — 401, 16-301 (1951). . The trial judge observed at the hearing April 17, 1061, that he had not seen the proposed amended complaint" }, { "docid": "19249505", "title": "", "text": "the filing of a Petition of Bankruptcy, a Trustee in Bankruptcy is not entitled to recover the funds covered by the garnishment as a preferential transfer although the judgment on the garnishment was rendered within four months prior to the filing of the Petition in Bankruptcy. The Court held that the service of the Writ of Garnishment made the Garnishee liable to the Creditor for the amount admitted by the Garnishee to be due by and to the Debtor and the judgment obtained by the Creditor against the Garnishee related back to the service of the Writ of Garnishment which was more than four months prior to the filing of the Petition of Bankruptcy. (Under prior bankruptcy law the preference period was four months and not the current 90 days). Therefore the judgment against the Garnishee was not affected by the bankruptcy proceeding. In the case of In Re Demountable House Corporation, 58 F.Supp. 955 (S.D.Fla.1945), the Creditor served three successive Writs of Garnishment on the Garnishee. All of the Writs of Garnishment were served more than four months prior to the filing of Petition in Bankruptcy. The District Court concluded that the case was controlled by Florida East Coast Railway Co., Inc., supra, however, the court noted a distinction between the two cases i.e., in the railway case Plaintiff obtained judgment within four months of bankruptcy but in In Re Demountable no judgment had been entered against the Garnishee prior to the filing of the bankruptcy petition and indeed no judgment had been entered against the Garnishee in the state court proceedings even to the date of the District Court decision. The indebtedness of the Garnishee to the main Defendant had been settled by a stipulation and therefore there never was judgment against the Garnishee. The District Court held that the lack of a final judgment in garnishment never made any real difference because the Writs of Garnishment and the Answers to the Garnishee had been made prior to the four month period before the filing of the Bankruptcy Petition. The fact that the Creditor traversed the Garnishee’s answer" }, { "docid": "3283674", "title": "", "text": "distinct and independent claim which the garnishee asserted existed in his favor as against the defendant, as a basis on his part for claiming property which was already in the possession of the court under the attachment, and held as the property of the defendant in attachment. This was the view taken by the garnishee of his rights on the subject, for the answer in the garnishment concluded simply by asking that the garnishee be discharged from the proceedings. And on the same day he intervened in the main action and. filed his interplea asserting in his behalf a right of possession to the cattle seized and' demanding damages for their detention. The judgment below, then, not alone caused the failure to traverse the answer to conclude the plaintiff as to the issues which could legally arise on the garnishment, that is, the liability of the garnishee thereunder, but it also made the failure to traverse operate as a summary and conclusive finding in favor of the garnishee on his interplea in the action, which was a wholly independent and distinct proceeding from the garnishment itself. The reasoning necessarily went further than this, since by relation it caused the answer of the- garnishee to become conclusive between the plaintiff and the defendant, thereby setting aside the seizure made before the garnishment issued, falsifying and destroying the return of the sheriff that he had levied upon the property of the defendant, and in effect- decided the case in favor of the defendant without proof and without a hearing. Nor can a different conclusion be reached by considering that in the further answer of the garnishee it was stated that he had been notified of an assignment of the rights of the. defendant Campbell Company under the contract, purporting to have been made prior to the levy of the attachment. This •was not pertinent to the question of the liability of the garnishee under the garnishment proceedings, and could not operate to conclusively establish as between the plaintiff and the defendant, or as between the plaintiff and the alleged as-signee, either the" }, { "docid": "1598437", "title": "", "text": "447, D. C. Code (D. C. Code 1930, T. 24, § 123) notwithstanding section 461 (D. C. Code 1930, T. 24, § 137). In other words, the court held that it was not necessary for the plaintiff to traverse the answer of; the garnishee, in order to exercise the right of examining the garnishee orally under oath. See Washington Loan & Trust Co. v. Susquehanna Coal Co., 26 App. D. C. 149; International Seal Co. v. Beyer, 33 App. D. C. 172. It may be added that the defendant in error in effect now concedes that the ruling of the municipal court was erroneous, but insists that the question is now moot, because, as it alleges, the plaintiff in error has personally met the officers of the garnishee in conference since the filing of the petition in error, and been given full and satisfactory information concerning the matter in issue. The garnishee argues that the purpose of this case has been accomplished, and it would he futile-to reverse the lower court and remand the case to that court for a hearing. The plaintiff in error, however, avers that, although a conversation was had between the parties on this subject: it was not designed or intended to waive the legal rights involved in this proceeding. In these circumstances we think it proper to reverse the judgment below. The judgment is therefore reversed at the cost of the garnishee, Potomac Electric Power Company, and the cause is remanded for further proceedings not inconsistent herewith." }, { "docid": "3283675", "title": "", "text": "was a wholly independent and distinct proceeding from the garnishment itself. The reasoning necessarily went further than this, since by relation it caused the answer of the- garnishee to become conclusive between the plaintiff and the defendant, thereby setting aside the seizure made before the garnishment issued, falsifying and destroying the return of the sheriff that he had levied upon the property of the defendant, and in effect- decided the case in favor of the defendant without proof and without a hearing. Nor can a different conclusion be reached by considering that in the further answer of the garnishee it was stated that he had been notified of an assignment of the rights of the. defendant Campbell Company under the contract, purporting to have been made prior to the levy of the attachment. This •was not pertinent to the question of the liability of the garnishee under the garnishment proceedings, and could not operate to conclusively establish as between the plaintiff and the defendant, or as between the plaintiff and the alleged as-signee, either the verity or the legal sufficiency of the alleged assignment. Aside, however, from the foregoing consideration, the record established a condition of facts which relieved the plaintiff from the necessity of traversing the answer of the garnishee, in so far as that answer referred to the independent facts substantiating the intended claim of the garnishee to the right of possession of the property already under seizure, and which, moreover, estopped the garnishee, and, therefore, the defendant, from asserting any right of possession by reason of the facts alleged in the further answer. Before the time for traverse had expired, and at the date when a motion filed by Pierce, as garnishee and interpleader, to discharge the attachment on the ground of his assumed right of possession under the. contract, had been noticed, for hearing, the court, by the consent of plaintiff and the garnishee, (the only parties who had up to that time appeared in the cause,) appointed the garnishee Pierce receiver, to dispose at private sale of the cattle, which had been levied upon, to" }, { "docid": "1598434", "title": "", "text": "MARTIN, Chief Justice. The question involved in this ease relates to a ruling of the municipal court in a garnishment case. On December 1, 1927, the plaintiff in error recovered a judgment against Marland W. Townsend by consideration of the municipal ■court in the sum of $250, and an attachment was issued thereon with a writ of garnishment to the Potomac Electric Power Company. The following is a copy of one of the interrogatories served upon the garnishee: “Were you at the time of the service of the annexed writ of attachment, or have you been between the time of such service and the filing of your answer to this interrogatory indebted to the defendant, and, if so, how, and in what amount?” To this question the garnishee, through its treasurer, A. M. Fisher, answered, “Nothing.” Thereupon the plaintiff in error moved for leave to examine Fisher as treasurer of the garnishee company orally and under oath in reference to the interrogatory and the answer thereto. The motion was denied by the court upon the ground that such an oral examination could not be had unless the applicant had first “traversed” the answer. This proceeding in error is brought to review that order. In our opinion the municipal court’s ruling was erroneous. In section 1089, D. C. Code (D. C. Code 1930, T. 24, § 287), provision is made for the filing of interrogatories in writing to be served upon a garnishee concerning any property of the defendant in his possession or any indebtedness of his to the defendant, the garnishee to file his answers thereto under oath. The section also provides that, “in addition to the answers to written interrogatories required of him, the garnishee may, on motion, be required to appear in court and be examined orally, under oath, touching any property or credits of the defendant in his hands.” In section 1095, D. C. Code (D. C. Code 1930, T. 24, § 292), provision is made for a trial of the issue in case the garnishee answers to interrogatories that he has no property or credits of" }, { "docid": "3283676", "title": "", "text": "verity or the legal sufficiency of the alleged assignment. Aside, however, from the foregoing consideration, the record established a condition of facts which relieved the plaintiff from the necessity of traversing the answer of the garnishee, in so far as that answer referred to the independent facts substantiating the intended claim of the garnishee to the right of possession of the property already under seizure, and which, moreover, estopped the garnishee, and, therefore, the defendant, from asserting any right of possession by reason of the facts alleged in the further answer. Before the time for traverse had expired, and at the date when a motion filed by Pierce, as garnishee and interpleader, to discharge the attachment on the ground of his assumed right of possession under the. contract, had been noticed, for hearing, the court, by the consent of plaintiff and the garnishee, (the only parties who had up to that time appeared in the cause,) appointed the garnishee Pierce receiver, to dispose at private sale of the cattle, which had been levied upon, to pay from the proceeds the claim of Pierce, by virtue of his contract, and to hold;:the balance subject to the final .order of the court. Obviously, this order, and the rights which Pierce took under it were wholly incompatible with the assumption'that he was entitled to the possession of the property levied upon as the owner thereof By the effect of the order, he was to be paid the full purchase price of the cattle. He could not. take the price and keep the cattle. The situation was this: At the time the Campbell Company made its motion to dismiss for want of jurisdiction, the garnishee had taken substantial rights which' had for their inevitable legal effect to render unnecessary any traverse of so much of his answer as referred to his rights under the supposed contract, and which also disposed of his interplea and claim of individual right to the possession of the property levied on under the attachment; yet the result of the judgment rendered below was to dismiss the action at the" }, { "docid": "23456967", "title": "", "text": "So that the whole gravamen is, that the attachments have hitherto prevented him from receiving the debts and interest due from the garnishees. Under such circumstances, where Boyle might at any time have relieved himself from the effects of the attachment, by the payment of the debt due to Zacharie and Turner; and where he has himself acquiesced in the delay, without in any manner attempting to speed the suits; and where no connivance or indulgence is pretended to have existed in concert with the garnishees; and where there is no allegation in the bill itself, of any undue delay in prosecutifig the attachments by the creditor, it is difficult to perceive any foundation on which to rest a claim for equitable relief. But the answer of the defendants shows still more forcible objections against the bill. This answer explicitly avers, that in both of the attachments the garnishees denied having any funds of Boyle in their possession, Nelson generally, and Breedlove, Bradford & Co. with the qualification, ,any funds liable to the attachment; and the suits were dismissed accordingly. Copies of the proceedings are annexed to the answer, which demonstrate (if it had been necessary), the result of the averment; but it must be taken to be true, as the hearing was u pon bill and answer. It is added in the answer that the suit against Breedlove, Bradford & Co. was commenced upon the information and at the request of Boyle; so that it was not in invitum; but was an arrest of his funds, upon his own suggestion, and with his own consent. Surely a suit in chancery cannot be maintained in a case so naked of all' real equity. But it is said that the answer of the garnishees, Breedlove, Bradford & Co. admits that they are indebted to the plaintiff. But we must take that answer according to its terms and import; and if so, then the admission is qualified. It is as follows: “we do not consider ourselves in debt to Hugh Boyle, or to Hugh Boyle & Co.; we received of Hugh Boyle" }, { "docid": "14275543", "title": "", "text": "the facts discussed in our opinion. After remand a very different situation was disclosed, and supplemental facts as presently discernible will hereinafter be developed. Appellants noticed for rehearing on April 17, 1961, their motion for leave to file a proposed amended complaint and to summon as additional parties, the members of Greene’s law firm. To establish a foundation therefor, appellants had' procured an order for oral examination of representatives of the National Savings and Trust Company and United States Treasury officials. Appellants were entitled, after oral examination, to file a traverse and to raise an issue with respect to matter developed at the oral examination. The Bank on October 31, 1959 had been served as garnishee in the original action. At that time the Bank had submitted sworn answers to the interrogatories served upon it, one of which read: “Have you participated in the negotiation of a U. S. Treasury check in the approximate amount of $209,-243.03 payable to American Pipe and Steel Corporation, and paid to or held for the account of Albert H. Greene, attorney in fact for said Corporation, any portion thereof?” A. “Yes.” Greene had not answered the interrogatories served on him at 4:15 P.M.,.October 16, 1959, with the writ of attachment before judgment. Had he done so, he might then have raised his defenses to the writ. Of course, the appellants would not have been bound by his answers even if he had denied possession of funds or credits of the appellee. Appellants would have been permitted by traverse to put in issue the factors upon which Greene might have relied. Our Code expressly so provides. To demonstrate the turn the case had taken, appellants first called a witness from the United States Treasury. Through his testimony it was established that on October 16, 1959 the Government had issued its cheek for $209,243.03 payable to American Pipe & Steel Corporation, care of Albert H. Greene, 1000 Connecticut Avenue, N.W., Washington 6, D. C. The Government’s records showed that the check had been received on October 16, 1959 by Albert H. Greene whose signature preceded the" }, { "docid": "3283671", "title": "", "text": "the attachment and dismissing the action for want of jurisdiction. The reasoning by which the court reached its conclusion was in substance as follows: The garnishee Pierce answered that he had nothing subject to garnishment. After doing this, he further answered, setting out an alleged contract between himself and the de fendant, by which he had agreed to sell and ship to the pastures of the.defendant a certain number of cattle, which agreement had been carried into execution, the cattle seized under the attachment being a portion of those shipped in carrying out the contract. The answer then stated that although the cattle had been thus shipped, by the terms of the contract, the right to their possession remained in the garnishee Pierce, to whom there was a large amount due under the contract for purchase money and expenses. The answer further stated that the garnishee had been notified of an assignment by the defendant of its rights under the contract, the date of this assignment as given being prior in time to the levy of the attachment. Considering that there had been no traverse by the plaintiff to the answer of the garnishee, within' twenty days, as required .by the Oklahoma statute, the court concluded that all the facts and averments and the inferences ¿Reducible therefrom, stated in the answer, were to be taken as true, not only as between the garnishee and the plaintiff, but also between the plaintiff and the defendant, in determining whether property of the defendant had been levied upon, under the attachment. Upon this assumption, finding that the answer of the garnishee established that no property of the defendant had been levied upon under the attachment,- it thereupon dissolved the attachment and dismissed the suit. But this reasoning was fallacious, since it assumed that because the failure to traverse the answer of the garnishee was conclusive of his non-liability, in-the garnishment proceedings, it was therefore equally so, as between the plaintiff and defendant, in determining whether the property which had been levied upon under the attachment belonged to the defendant. But the two considerations," }, { "docid": "22588663", "title": "", "text": "trial as to any element of the negligent misrepresentation claim. First, it is clear that Fidelity had a duty under Pennsylvania law to answer Mamiye’s interrogatories fully and accurately. Pa.R.Civ.P. 3144(a) provides: The plaintiff may, at the time of issuance of the writ [of execution] or thereafter, file and serve interrogatories directed to the garnishee respecting property of the defendant in his possession. The plaintiff in his interrogatories may require the garnishee to include in his answer, so far as relevant, ... the specific amount of any debt, the value and location of any property and the nature and amount of consideration given for any transfer of property. See also Pa.R.Civ.P. 3117 (providing for discovery in aid of execution). Second and similarly beyond dispute is Fidelity’s failure to indicate in its answers to the interrogatories that the interest which accrued on the corpus of Commonwealth Marine’s trust comprised a separate account. The district court’s opinion, in fact, notes that Fidelity’s counsel “[did] not acknowledge negligence, but does say it is arguable.” The court characterized this response as a “diplomatic” admission of breach of duty. Third, Mamiye has suffered pecuniary loss as a result of stipulating with respect to the principal trust account but not with respect to the separate interest account. The crux of the legal issue before us remains, however, whether Mamiye came forward with sufficient evidence that it had justifiably relied upon the information supplied by Fidelity. We conclude that evidence exists which could support a finding of reliance. The district court held that “a transfer of funds [was] entirely anticipatable by anyone who read with care the trust agreement ...” and that, therefore, there was “no basis at all for concluding that Mamiye [was] ... gulled [into the stipulation] by Fidelity’s non-disclosure that income and principal were kept in separate boxes, that [is] to say, separate accounts by the Fidelity Bank.” Yet we find nothing in the trust agreement so unmistakably indicating the existence of a distinct income account that Mamiye’s reliance on Fidelity’s answers to the interrogatories would be unjustifiable as a matter of law. Fidelity’s" }, { "docid": "887826", "title": "", "text": "on which Hibernia was served with the writ and interrogatories, the letters of credit had been issued, but no drafts had been drawn against the letters nor had any shipping documents been received by Hibernia. As of that date, Hibernia had no absolute liability to FIBRASA since liability of the issuer of a letter of credit attaches only upon strict compliance with the terms of the letter before its expiration date. Since the conditions required to be performed for Hibernia to be obligated on the letter of credit had not been performed, Hibernia was not obligated on the letter of credit. Venizelos, S.A. v. Chase Manhattan Bank, supra. Under Louisiana law the efficacy of an attachment is determined according to the facts existing at the date of the issuance of the writ and, if defective, it is not cured by subsequent events. An-isman v. Nagle, 177 La. 583, 148 So. 885 (1933) and cases cited therein; Forbess v. George Morgan Pontiac Co., 135 So.2d 594 (La.App., 1961). As of the date on which the writ and interrogatories were served, Hibernia had no funds in its possession which belonged to FIBRASA nor did it have an absolute liability to FIBRASA under the letter of credit. Louisiana courts have determined that only property held by a garnishee, or debts absolutely due by him, though not exigible, at the moment the interrogatories are served are subject to seizure under a garnishment proceeding. Maduel v. Mousseaux, 29 La.Ann. 228 (1877). Except when provided for by statute contingent liabilities are not subject to garnishment. Simon v. Hulse, 12 La.App. 450, 124 So. 845 (1929); Smith v. Tooke, 10 La.App. 461, 120 So. 651 (1929). The principle enunciated in Coleman v. Fennimore, 16 La.Ann. 253 (1861), is apposite here. There, a garnishee had answered interrogatories, stating that it had no present indebtedness to the defendant, nor any future indebtedness except that contingent on the completion of a contract. This answer had not been traversed; therefore, the attempted garnishment was held not binding on the garnishee. In the present case the plaintiff failed to traverse Hibernia’s answers" }, { "docid": "3283673", "title": "", "text": "the liability of the garnishee under the proceedings in garnishment and the validity of the levy previously made under the attachment, were distinct and different issues. The section of the Oklahoma statute to which the court referred (Oklahoma Stat. 1893, sec. 4085) provides that the answer of the garnishee “ shall in all cases be conclusive of the truth of the facts therein stated, unless the plaintiff shall within twenty days serve upon the garnishee a notice in writing that he elects to take issue on his answer.” . It, however, can in reason be construed only as importing that the facts stated in the answer, unless traversed, should be conclusive, for the pürpose of determining'whether the garnishee was liable under the process issued against him and to which process his answer was directed. Indeed, all the facts stat,ed in the “further” answer of the gárnishee were, in legal effect, substantially irrelevant to the issue between the plaintiff and the garnishee, since they referred not to the garnishee’s liability to the defendant, but propounded a distinct and independent claim which the garnishee asserted existed in his favor as against the defendant, as a basis on his part for claiming property which was already in the possession of the court under the attachment, and held as the property of the defendant in attachment. This was the view taken by the garnishee of his rights on the subject, for the answer in the garnishment concluded simply by asking that the garnishee be discharged from the proceedings. And on the same day he intervened in the main action and. filed his interplea asserting in his behalf a right of possession to the cattle seized and' demanding damages for their detention. The judgment below, then, not alone caused the failure to traverse the answer to conclude the plaintiff as to the issues which could legally arise on the garnishment, that is, the liability of the garnishee thereunder, but it also made the failure to traverse operate as a summary and conclusive finding in favor of the garnishee on his interplea in the action, which" }, { "docid": "14275556", "title": "", "text": "especially in light of the results of the examination of the Bank’s witness, appellants were entitled to amend their complaint to show a basis for the claimed jurisdiction. Appellants thereupon would be bound to prove that $50,000 of the Government’s money payable to the appellee had come into the hands of Greene. If they could further show that such funds had become chargeable in favor of the appellants as a result of the course of dealings as alleged, the monies would still be funds of the appellee subject to attachment. On such a showing, the purported conveyance to Greene or his firm might be set aside, and the funds in the hands of Greene or his firm would be amenable to the writ. Accordingly, as previously noted, the court would not lack jurisdiction. The finding of “no indebtedness” was premature. The trial judge erred in denying appellants leave to file their proposed amended complaint and in dismissing the action. Reversed and remanded. . Western Urn Mfg. Co. v. American Pipe & Steel Corp., 109 U.S.App.D.C. 145, 284 F.2d 279 (1960). . D.C.Code, § 16-303 (1951) provides in part: “In addition to the answers to written interrogatories required of him, the gar- nishee may, on motion, be required to appear in court and be examined orally under oath touching any property or credits of the defendant in his hands.” We long since noted that such an oral examination “may be necessary for the information of the creditor before he is; able to decide -whether he should traverse the answer of the garnishee.” Fidelity Savings Co. v. Security Savings & Commercial Bank, 55 App.D.C. 180, 181, 3 F.2d 351, 352 (1925). . We have held that a traverse of the answer is not a condition precedent to the exercise of the right to require oral examination. Flynn v. Potomac Electric Power Co., 60 App.D.C. 82, 47 F.2d 978 (1931). . Fidelity Savings Co. v. Security Savings & Commercial Bank, supra note 2. . D.C.Code, § 16-317 (1951); Young v. Nicholson, 70 App.D.C. 351, 352, 107 F.2d 177, 178 (1939) ; Ourisman Chevrolet" }, { "docid": "887827", "title": "", "text": "and interrogatories were served, Hibernia had no funds in its possession which belonged to FIBRASA nor did it have an absolute liability to FIBRASA under the letter of credit. Louisiana courts have determined that only property held by a garnishee, or debts absolutely due by him, though not exigible, at the moment the interrogatories are served are subject to seizure under a garnishment proceeding. Maduel v. Mousseaux, 29 La.Ann. 228 (1877). Except when provided for by statute contingent liabilities are not subject to garnishment. Simon v. Hulse, 12 La.App. 450, 124 So. 845 (1929); Smith v. Tooke, 10 La.App. 461, 120 So. 651 (1929). The principle enunciated in Coleman v. Fennimore, 16 La.Ann. 253 (1861), is apposite here. There, a garnishee had answered interrogatories, stating that it had no present indebtedness to the defendant, nor any future indebtedness except that contingent on the completion of a contract. This answer had not been traversed; therefore, the attempted garnishment was held not binding on the garnishee. In the present case the plaintiff failed to traverse Hibernia’s answers to the garnish interrogatories which are similar to the answers in the Coleman case. In attempting to show that the rights of the defendant to draw against the letters of credit are property rights which could be garnished, counsel for the plaintiff cites some interesting examples. Other than debts owed and unearned wages, clearly subject to garnishment, examples of property such as the right of a student to remain in school and the right of a tenant to public housing are suggested. One would hardly agree that the latter two “property rights” could be garnished under a writ of attachment. It is also noticed that any rights of the plaintiff under the letters of credit no longer exist since both letters of credit have long since expired. Furthermore, both letters of credit had expired prior to the filing of plaintiff’s amended and supplemental complaint. Where jurisdiction is sought under a non-resident writ of attachment and there no longer exists the seized property on which jurisdiction is based, this court would be called upon to do" }, { "docid": "14275542", "title": "", "text": "DANAHER, Circuit Judge. When an earlier phase of this litigation was before us, we pointed out that the District Court had misconceived the theory upon which its jurisdiction had been invoked. We remanded, noting that if the named garnishee Greene “shall be found to have been possessed of assets, funds or credits, of the appellee at the time the writ was served,” the court should reinstate the complaint “subject to such further proceedings as the parties may feel advised to pursue.” At a hearing after remand, the trial judge denied appellants’ motion for leave to file an amended complaint. It was also found, without examination of Greene as a witness and without his sworn answers to the interrogatories which had been served on him, that Greene “was not indebted to, and was not otherwise possessed of assets of, the [appellee] at the time when the said writ of attachment before judgment was personally served in the District of Columbia upon the said garnishee, Albert H. Greene.” In reversing, we had ruled only in light of the facts discussed in our opinion. After remand a very different situation was disclosed, and supplemental facts as presently discernible will hereinafter be developed. Appellants noticed for rehearing on April 17, 1961, their motion for leave to file a proposed amended complaint and to summon as additional parties, the members of Greene’s law firm. To establish a foundation therefor, appellants had' procured an order for oral examination of representatives of the National Savings and Trust Company and United States Treasury officials. Appellants were entitled, after oral examination, to file a traverse and to raise an issue with respect to matter developed at the oral examination. The Bank on October 31, 1959 had been served as garnishee in the original action. At that time the Bank had submitted sworn answers to the interrogatories served upon it, one of which read: “Have you participated in the negotiation of a U. S. Treasury check in the approximate amount of $209,-243.03 payable to American Pipe and Steel Corporation, and paid to or held for the account of Albert H." } ]

[ { "docid": "15414494", "title": "", "text": "was properly authenticated, the district court did not err in refusing to consider the admissibility of the evidence under Hong Kong law. IV. Alleged Due Process Violations Oen contends that the district court violated his due process rights when it denied his request to cross-examine an individual who submitted an affidavit in support of extradition. However, the Second Circuit has held that there is no right to cross-examination in extradition proceedings. See Messina v. United States, 728 F.2d 77, 80 (2d Cir.1984); Simmons v. Braun, 627 F.2d 635, 636 (2d Cir.1980). We agree with the statement in Messina that [a]s has been pointed out repeatedly, “[a]n extradition hearing is not the occasion for an adjudication of guilt or innocence.” Melia v. United States, 667 F.2d 300, 302 (2d Cir.1981). The eviden-tiary rules of criminal litigation are not applicable. Id.; Simmons v. Braun, [627 F.2d 635,] 636 [(2d Cir.1980)]; Fed.R.Crim.P. 54(b)(5); Fed.R.Evid. 1101(d)(3). As in the case of a grand jury proceeding, a defendant has no right to cross-examine witnesses or introduce evidence to rebut that of the prosecutor. Charlton v. Kelly, 229 U.S. 447, 462 [33 S.Ct. 945, 950, 57 L.Ed. 1274] (1913); see United States v. Y. Hata & Co., 535 F.2d 508, 512 (9th Cir.), cert. denied, 429 U.S. 828, 97 S.Ct. 87, 50 L.Ed.2d 92 (1976) [(holding no right to cross-examine in grand jury proceedings) ]. Messina, 728 F.2d at 80. Accordingly, Oen was not denied due process by the extradition court’s refusal to allow him to cross-examine. Oen also contends that his due process rights were violated because he allegedly was not adequately informed of the charges against him. A charge in an extradition proceeding should set forth “clearly and briefly the offense charged,” but “[i]t need not be drawn with the formal precision of an indictment.” Yordi v. Nolte, 215 U.S. 227, 230, 30 S.Ct. 90, 91, 54 L.Ed. 170 (1909) (quoting Ex parte Sternaman, 11 F. 595, 597 (N.D.N.Y.1896), aff'm sub nom. Sternaman v. Peck, 80 F. 883 (2d Cir.1897)). The warrant of arrest was sufficiently clear to apprise Oen of the charges against" } ]

[ { "docid": "3582310", "title": "", "text": "as extraditable. Consequently, petitioner contends, the magistrate should have held a hearing to assess his competency. In Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913), the Supreme Court noted that “impressive evidence of the insanity of the accused” had been excluded at an extradition proceeding. The Court concluded habeas relief was not warranted, however, stating, “If the evidence was only for the purpose of showing present insanity by reason of which the accused was not capable of defending the charge of crime, it is an objection which should be taken before or at the time of his trial for the crime, and heard by the court having jurisdiction of the crime.” Id. 462, 33 S.Ct. at 950. Petitioner argues that the due process and Sixth amendment right to counsel argument he is raising now was never specifically addressed in Charlton and hence Charlton is not controlling. Further, he relies on Matter of Extradition of Artukovic, 628 F.Supp. 1370, 1375 (C.D.Cal.1986), where a district court specifically rejected the government’s contention that the accused’s competence was not a proper subject of inquiry in an extradition proceeding. Instead, the district court ruled, “The Sixth Amendment guarantees him, as all persons before the court in matters affecting life and liberty, the effective assistance of counsel. Meaningful consultation between attorney and client is an essential element of competent representation [citation omitted]. Furthermore, respondent’s Fifth Amendment right to a fair hearing requires that he be shown to have ... minimum competence. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966).” Id. at 1375. Based on reports and testing from an attending government physician and from the court’s appointed psychiatrist, the accused was found competent. The court in Artukovic did not mention Charlton v. Kelly, and it relied solely on criminal cases which guaranty defendants a right to counsel in criminal cases and proscribe the criminal conviction of legally incompetent defendants as violative of due process. Extradition proceedings, however, are generally not considered criminal prosecutions. Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st Cir.1978). It is" }, { "docid": "11075242", "title": "", "text": "appealed from Judge Korman’s order on March 3,1989. He contended that his alleged crime constituted a political act, that there was insufficient probable cause shown, that Judge Korman lacked jurisdiction and that the court was barred by res judicata and double jeopardy from reconsidering the extradition request denied by Magistrate Caden. In addition, petitioner claimed that should he be extradited to Israel he would face procedures and treatment “antipathetic to a court’s sense of decency.” Because this final ground had not been raised in any prior proceeding, petitioner requested an evidentiary hearing to demonstrate that the Israeli judicial system would not afford him due process and that he would be subject to conditions of detention and interrogation in violation of universally accepted principles of human rights. The government opposed petitioner’s request for a hearing. It asserted that the scope of habeas review is extremely narrow and that the rule of non-inquiry prohibited the court from inquiring into the integrity of the requesting state’s judicial system. Neither side requested that the issue be referred to Judge Korman. The petition was referred to the present judge by random selection. On May 16, 1989 this court ruled from the bench that it would consider petitioner’s due process claim and permit both parties to submit further evidence on this and any other issue. The government sought a writ of mandamus from the Court of Appeals for the Second Circuit to prohibit the court from holding a hearing and from receiving evidence on the probable nature of the judicial procedures of the requesting nation in an extradition matter. On June 20, 1989 the Court of Appeals denied the writ of mandamus. This court held evidentiary hearings in July and August of 1989 to supplement the record before Magistrate Caden and Judge Korman. Both parties submitted documentary evidence. Petitioner called four witnesses to testify on the Israeli judicial process and conditions of detention: Professor John Quigley, Abdeen M. Jabara, Leah Tsemel, Esq. and Sami Esmail. Preserving its objection to the proceedings, respondent called two witnesses, Professors Alan Dershowitz and Monroe Freedman, and submitted statements of United" }, { "docid": "3582315", "title": "", "text": "him unable to achieve a rational understanding of the proceedings against him.” Given the limited purpose of extradition proceedings and the tenor of the Charlton case, we conclude due process does not require a competency hearing in extradition proceedings, at least absent a more severe condition than the one described in the doctor’s report. 2. Dismissal of Extradition Proceedings as a Remedy for Violation of Constitutional Rights. Since no evidentiary hearing was held, we must assume for the purpose of this decision that the interview at the Salem House of Correction and the search of the Skunks Misc.y Road home have violated petitioner’s constitutional rights. Nevertheless, essentially for the reasons stated in the magistrate’s opinion, we find that petitioner’s cases are unconvincing and that relief is not warranted in this habeas proceeding. As the magistrate pointed out, it was state — not federal — offi cials who conducted the interview and search. Dismissal of extradition proceedings would not seem to serve much of a deterrent effect to such state conduct. If petitioner’s rights were violated, he may seek redress in a § 1983 damages action. More egregious governmental conduct than that alleged here would be required before a court should interfere in international affairs by denying foreign states their rights under extradition treaties. See also Simmons v. Braun, 627 F.2d 635 (2d Cir.1980) (exclusionary rule would not be applied in extradition proceedings to suppress defendant’s identification as the fruit of an illegal stop and search). 3. Probable Cause. The parties appear to agree that under the relevant Canada-United States Extradition Treaty, “extradition shall be granted only if the evidence be found sufficient, according to the laws of the place where the person sought shall be found to justify his committal for trial,” (emphasis added) in other words, according to the laws of Massachusetts since that was where petitioner was arrested. Petitioner then points out that under Massachusetts law, a defendant at a probable cause hearing has the right to cross-examine the prosecution’s witnesses and to present an affirmative defense; only evidence which would be admissible at trial may be presented;" }, { "docid": "6219847", "title": "", "text": "embassy in Washington submitted a diplomatic note to the Department of State requesting that Martin be extradited pursuant to the amended treaty. Martin was arrested and detained in July. At separate hearings in July and August 1992, a magistrate judge determined that Martin was not eligible for bail and was extraditable. Martin filed a petition for writ of habeas corpus. The district court denied Martin’s petition in September. 804 F.Supp. 1530 (1992). II. DISCUSSION On appeal, Martin raises three arguments. First, Martin contends that the district court erred in finding probable cause to believe that he had committed the crimes with which he was charged. That argument is patently meritless. Second, Martin argues that he was entitled to bail pending a determination of his extraditability. Third, Martin asserts that Canada’s alleged delay of over seventeen years in seeking his extradition violates his due process right to a “speedy extradition.” A. Denial of Bail. In extradition cases there is a presumption against bond. Defendants, like Martin, often are international fugitives. Consequently, a defendant in an extradition case will be released on bail only if he can prove “special circumstances.” Wright v. Henkel, 190 U.S. 40, 63, 23 S.Ct. 781, 787, 47 L.Ed. 948 (1903); In re Extradition of Ghandtchi, 697 F.2d 1037, 1038 (11th Cir.1983). Before the magistrate and the district court, Martin argued that his case presented “special circumstances.” The magistrate held that Martin failed to prove special circumstances. The district court affirmed and noted that Martin had in the past twice fled across international borders when he faced criminal prosecution. On appeal, Martin has abandoned his special circumstances argument; he lists none in his brief. Instead, Martin complains only that the district court erred in determining that he was a flight risk. Absent proof of special circumstances, however, Martin is not entitled to bail. B. Due Process Right to “Speedy Extradition. ” We turn, then, to the principal issue raised in this appeal: whether there is a constitutional right under the Due Process Clause of the Fifth Amendment to a “speedy extradition.” The singular nature of extradition proceedings largely" }, { "docid": "11075243", "title": "", "text": "Korman. The petition was referred to the present judge by random selection. On May 16, 1989 this court ruled from the bench that it would consider petitioner’s due process claim and permit both parties to submit further evidence on this and any other issue. The government sought a writ of mandamus from the Court of Appeals for the Second Circuit to prohibit the court from holding a hearing and from receiving evidence on the probable nature of the judicial procedures of the requesting nation in an extradition matter. On June 20, 1989 the Court of Appeals denied the writ of mandamus. This court held evidentiary hearings in July and August of 1989 to supplement the record before Magistrate Caden and Judge Korman. Both parties submitted documentary evidence. Petitioner called four witnesses to testify on the Israeli judicial process and conditions of detention: Professor John Quigley, Abdeen M. Jabara, Leah Tsemel, Esq. and Sami Esmail. Preserving its objection to the proceedings, respondent called two witnesses, Professors Alan Dershowitz and Monroe Freedman, and submitted statements of United States officials who had observed trials in Israel. A representative of the Israeli government certified the protections petitioner would receive in Israel. See Appendix attached infra. The parties then fully briefed and argued the case in September, 1989. In all, some fourteen days of evidentiary hearings, and extensive oral arguments based upon full briefs and the court’s own research, were devoted to this case. Petitioner has had a full opportunity to be heard. II. SCOPE OF REVIEW A. Generally The sole mechanism for review of a magistrate’s order approving extradition is a collateral habeas corpus proceeding. There is no statutory provision for a direct appeal. Collins v. Miller, 252 U.S. 364, 369, 40 S.Ct. 347, 349, 64 L.Ed. 616 (1920) (“proceeding before a committing magis trate in international extradition is not subject to correction by appeal”); Demjanjuk v. Petrovsky, 776 F.2d 571, 576 (6th Cir.1985), cert. denied, 475 U.S. 1016, 106 S.Ct. 1198, 89 L.Ed.2d 312 (1986); Jhirad v. Ferrandina, 536 F.2d 478, 482 (2d Cir.), cert. denied, 429 U.S. 833, 97 S.Ct. 97, 50" }, { "docid": "542268", "title": "", "text": "Cornejo-Barreto filed a petition for writ of habeas corpus on October 2, 1997. After a number of amendments to the petition, counsel presented arguments on June 29 and July 27, 1998 before District Court Judge Stotler. Cornejo-Barreto made three arguments: (1) that the extradition order violated Article 3 of the U.S.-ratified Torture Convention; (2) that the order violated his Fifth Amendment right to procedural due process; and (3) that the order violated his Eighth Amendment right to be free from cruel and unusual punishment. On October 7, 1998, the court denied Cornejo-Barreto’s petition and granted his request for a stay pending appeal. The court found that the scope of its review was limited to ensuring that the elements necessary for extradition are present, thus barring Cornejo-Barreto’s claims. Referring to the Ninth Circuit’s rule regarding self-executing treaties explicated in Saipan v. United States Dep’t of Interior, 502 F.2d 90, 97 (9th Cir.1974), the court found that Article 3 of the Torture Convention was not self-executing. The court found that the petitioner’s Fifth Amendment claim was defeated by the special nature of extradition hearings and the limited process due fugitives facing return to a country that requests them. The court dismissed the Eighth Amendment claim on the ground that the Eighth Amendment applies in criminal settings only; under caselaw, extradition proceedings are not criminal proceedings. Finally, the court denied a request by Cornejo-Barreto to admit the evidence included in his extradition proceeding regarding his past torture and fear of future torture. Cornejo-Barreto timely appealed the district court’s order denying him habeas relief. On appeal, he raises only the Torture Convention claim. We have jurisdiction under 28 U.S.C. § 1291 and we review de novo. See Allen v. Crabtree, 153 F.3d 1030, 1032 (9th Cir.1998) (district court’s grant or denial of § 2241 habeas corpus petition reviewed de novo), cert. denied, 525 U.S. 1091, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999). We affirm the district court’s denial of the petition but direct that it be without prejudice to the filing of a. new petition should the Secretary of State decide to surrender Cornejo-Barreto." }, { "docid": "18283814", "title": "", "text": "was resentenced to 14 years and 8 months in prison. Several appeals followed, and in June 2004 the case was again remanded for retrial based on the finding that, because Petitioner was tried in absentia without notice, he “was denied the constitutional right to be called and to attend the proceedings.” Following that ruling, Petitioner has not yet been retried. In November 2004, the United States filed a complaint for extradition on behalf of the Albanian government, and Petitioner was arrested in the Eastern District of Pennsylvania pursuant to an arrest warrant. In support of extradition, the Albanian government submitted Matilda Kase-mi’s statement and a series of court papers documenting the passage of Petitioner’s case through the Albanian legal system. An extradition hearing was initiated before a magistrate judge in January 2005. The Magistrate Judge found that the extradition treaty between Albania and the United States was valid, but expressed concern over the lack of sworn documents provided by the Albanian government in support of probable cause. The Magistrate Judge offered the Albanian government two weeks to gather additional documentation. When the extradition hearing reconvened in February 2005, the Magistrate Judge reviewed Albania’s additional submission, which contained an affidavit from an Albanian prosecutor with attached photographs, reports, and declarations, including the declarations of Daut Hoxha, Ardjana Hoxha, Be-jame Hoxha, Rahman Sheqeri, and Fetah Hoxha described above. ■ At the hearing, the United States argued that Daut Hoxha’s declaration was relevant to probable cause despite his later recantation ■ because the declaration was corroborated by the gun found in Fetah Hoxha’s sofa and by Fetah Hoxha’s statement that Daut Hoxha came to his house on the morning after the murders. Although the Magistrate Judge initially stated that he would not consider Daut Hox-ha’s declaration due to the recantation, he later appeared to adopt the government’s view, holding that he could consider the declaration to the extent that it was independently corroborated. Without permitting Petitioner to introduce telephonic testimony from the recanting witnesses, the Magistrate Judge concluded that the Albanian government’s submission was sufficient to satisfy probable cause. The Judge therefore issued" }, { "docid": "4151741", "title": "", "text": "his warrant for the commitment of the person so charged to the proper jail, there to remain until such surrender shall be made. Finding that the Treaty was in effect at the time of the offenses charged, that those offenses are covered by the Treaty, and that the documents submitted with the extradition request and at the hearing were admissible and properly authenticated, Judge Niedermeier reviewed the evidence and determined that there was probable cause to believe that Peryea, as well as the other nine individuals charged in the Canadian informations, committed the crimes charged. He accordingly certified their ex-traditability and ordered the extradition to proceed. In his application to this court for a writ of habeas corpus, petitioner raises several challenges to the proceedings to date. He contends that (1) he was improperly denied certain items of discovery; (2) evidence was admitted at the hearing in violation of the Treaty; (3) his detention exceeded permissible time limits under the Treaty; and (4) the offenses charged in Canada are not covered by the Treaty. Petitioner also seeks to adopt and incorporate the arguments made by the other extraditees in this matter who have sought to obtain release upon writs of habeas corpus. He does not, however, directly challenge the magistrate’s determination of probable cause of his guilt. Petitioner’s claims are presented without argument, in no greater detail than as set forth here, and could hardly be considered without elaboration. However, as he seeks to incorporate the arguments and grounds for relief of the other extraditees, whose claims overlap Peryea’s, the court will read into petitioner’s claims the arguments of others and will consider them in that light. DISCUSSION Petitioner was detained prior to the extradition hearing and remains incarcerated pursuant to the final clause of § 3184 as quoted above. The present petition is not an appeal of Judge Niedermeier’s order; it is, rather, a challenge to the legality of petitioner’s confinement. See Spatola v. United States, 925 F.2d 615, 617 (2d Cir. 1991) (order certifying request for extradition not “final” and therefore not reviewable on direct appeal). This court’s" }, { "docid": "620900", "title": "", "text": "Judge A.M. Simcha of the Magistrate Court (October 18, 1983) which set forth the charges against Demjanjuk. Pursuant to 18 U.S.C. § 3184 and the Treaty, this is sufficient. The Treaty does not include as a prerequisite to extradition the filing of formal charges and an extradition court need not find that an accused felon is charged in the same manner as would be required by United States criminal law nor need it review compliance with foreign criminal procedure. Accord Assarsson, 635 F.2d at 1242, 1244; see also Grin, 187 U.S. at 190-94, 23 S.Ct. at 102-03. Petitioner presents no argument or evidence to substantiate his claim that the certification of documents is improper, nor did he do so at the March 12, 1985 Extradition Hearing. See Transcript of March 12, 1985 Hearing at 111-25, 126-29, 164-166. Furthermore, questions of certification and authentication are not properly before a habeas court. Were this Court to examine the question again, however, it would still find the documents properly certified and authenticated. Order of April 15, 1985 at 4. CONCLUSION Petitioner has in no way met his burden of showing that he is in custody in violation of the “Constitution or laws or treaties of the United States.” 28 U.S.C. § 2241(e)(3). Accord Allen v. Perini, 424 F.2d 134, 138 (6th Cir.1970). The application for writ of habeas corpus is hereby denied. The effect of certification of extraditability is stayed until June 4, 1985 at 10:00 a.m. D.S.T. to afford the parties the opportunity to apply for whatever relief they deem appropriate. IT IS SO ORDERED. . John Demjanjuk's counsel filed a Petition for a Writ of Habeas Corpus by a Prisoner in Federal Custody in the Northern District of Ohio on April 25, 1985. The petition was assigned to the Honorable Thomas D. Lambros under the random assignment system which is the standard operating procedure in this District. L.Civ.R. 7.07. Judge Lambros transferred the petition to this Court as a “related matter”, pursuant to Local Civil Rule 7.09(3). Rule 7.09(3) provides that: Subsequent proceedings in civil cases and in criminal cases (including" }, { "docid": "8630864", "title": "", "text": "under the civil rules.. No jury will sit, no elements of the offense will be adjudicated in a speedy and public trial, the accused will not be confronted by the witnesses against them, jeopardy does not attach (meaning that successive efforts to extradite a person do not constitute double jeopardy), and so on. Collins v. Loisel, 262 U.S. 426, 43 S.Ct. 618, 67 L.Ed. 1062 (1923); cf. Puerto Rico v. Branstad, 483 U.S. 219, 107 S.Ct. 2802, 97 L.Ed.2d 187 (1987). Extradition is related to criminal proceedings because it determines where a person will be tried. Yet there is no rule that everything related to a criminal case is itself a “criminal prosecution” for purposes of the Sixth Amendment. Thus, for example, a person arrested and held for questioning cannot assert a right to counsel under the Sixth Amendment, Moran v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986), even though the questioning may lead to a prosecution. Moran concluded that the Sixth Amendment right to counsel does not attach until the “first formal charging proceeding”. 475 U.S. at 428, 106 S.Ct. 1135; see also, e.g., United States v. Gouveia, 467 U.S. 180, 187-88, 104 S.Ct. 2292, 81 L.Ed.2d 146 (1984); Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972). The United States has not charged petitioners with a crime, and the Sixth Amendment does not offer any protection concerning charges pending in foreign nations. Cf. United States v. Balsys, 524 U.S. 666, 118 S.Ct. 2218, 141 L.Ed.2d 575 (1998) (possibility that testimony will prove incriminating in a foreign prosecution does not activate the Self-Incrimination Clause of the Fifth Amendment). We therefore agree with Romeo v. Roache, 820 F.2d 540, 543-44 (1st Cir.1987), that there is no Sixth Amendment right to counsel in extradition proceedings. Petitioners say that In re Burt, 737 F.2d 1477, 1482-84 (7th Cir.1984), commits this circuit to a contrary view, but it does not. Burt relies on the Due Process Clause of the Fifth Amendment, not the Counsel Clause of the Sixth Amendment — -and then only for" }, { "docid": "11075241", "title": "", "text": "Extradition of Atta, 87-0551-M, 1988 WL 66866 (E.D.N.Y.June 17, 1988) (LEXIS 60001). The United States Attorney filed a second extradition complaint seeking de novo consideration. An independent extradition hearing was then held before United States District Judge Edward R. Korman, sitting as an extradition magistrate. He relied on the record before Magistrate Caden and additional evidence received between July and October of 1988. Each party called witnesses and offered exhibits. The court called an expert witness who testified by telephone from Israel. On February 14, 1989 Judge Korman granted the extradition request. He held that res judicata and double jeopardy did not bar the second complaint; if there were any impropriety in the manner petitioner was deported from Venezuela to the United States it did not deprive the court of jurisdiction; the crime alleged was not within the political offense exception to the Treaty; and there was sufficient probable cause to certify petitioner for extradition. In re Extradition of Atta, 706 F.Supp. 1032 (E.D.N.Y.1989) (hereafter Ahmad). By petition for a writ of habeas corpus, petitioner appealed from Judge Korman’s order on March 3,1989. He contended that his alleged crime constituted a political act, that there was insufficient probable cause shown, that Judge Korman lacked jurisdiction and that the court was barred by res judicata and double jeopardy from reconsidering the extradition request denied by Magistrate Caden. In addition, petitioner claimed that should he be extradited to Israel he would face procedures and treatment “antipathetic to a court’s sense of decency.” Because this final ground had not been raised in any prior proceeding, petitioner requested an evidentiary hearing to demonstrate that the Israeli judicial system would not afford him due process and that he would be subject to conditions of detention and interrogation in violation of universally accepted principles of human rights. The government opposed petitioner’s request for a hearing. It asserted that the scope of habeas review is extremely narrow and that the rule of non-inquiry prohibited the court from inquiring into the integrity of the requesting state’s judicial system. Neither side requested that the issue be referred to Judge" }, { "docid": "7059639", "title": "", "text": "Assarsson, the only issues raised were whether the petitioner had actually been charged with the crimes by the country seeking extradition, whether one of the alleged acts was an extraditable offense under the treaty, and whether the evidence established probable cause to believe the petitioner committed the crimes charged. 635 F.2d at 1239, 1244-45. Thus, in those cases, we were not presented with and had no occasion to address a habeas corpus attack challenging, on constitutional grounds, the conduct of the executive branch in deciding to extradite the petitioner, and the references to Fernandez must be considered in this light. When we were later presented with a procedural due process claim in the extradition context in David v. Attorney General, 699 F.2d 411 (7th Cir.1983), we intimated that a broader scope of review might be available. In David, the petitioner claimed that the district court’s refusal to grant him a continuance of the extradition hearing violated his constitutional right to effective assistance of counsel. The government contended that this issue fell outside the scope of review afforded by a habeas corpus petition arising out of an extradition proceeding. We noted, however, that there is some authority for the suggestion that the limited scope of review applies only to the extradition ruling and not to procedural issues, see, e.g., Garcia-Guillern v. United States, 450 F.2d 1189, 1191 (5th Cir.1971). (“[H]abeas corpus review of the findings of a court which conducted an extradition hearing is extremely limited.”) Since it appears settled that aliens are entitled to some procedural due process rights in an ex tradition hearing, see, Grin v. Shine, 187 U.S. 181, 184, 23 S.Ct. 98, 99, 47 L.Ed. 130 (1902); Caltagirone v. Grant, 629 F.2d 739, 748 fn. 19 (2d Cir.1980); Rosado v. Civiletti, supra, 621 F.2d [1179] at 1195 [(2nd Cir.1980)], a habeas corpus petition would seem to be the appropriate means of enforcing those rights. 699 F.2d at 415. We did not resolve this issue in David, however, because we concluded that the denial of the continuance did not violate the petitioner’s constitutional rights. We hold that federal" }, { "docid": "3582309", "title": "", "text": "he could not knowledgably participate in the extradition proceedings. To extradite one who has had no meaningful input or understanding of the extradition proceedings against him would be a denial of due process. Second, state and Canadian authorities had colluded to violate his Fourth (pretextual search of home), Fifth (no Miranda warnings), and Sixth (interview without counsel’s permission) amendment rights, and now the Canadian authorities had the fruits of those violations. The only meaningful sanction to deter such improper conduct would be denial of extradition. We address each argument, though in a somewhat different order. 1. Due Process. Petitioner points out that at an extradition hearing, the accused has the right to present evidence which may explain ambiguities or doubtful elements in the case against him (but he cannot present defenses), Collins v. Loisel, 259 U.S. 309, 315-317, 42 S.Ct. 469, 471-472, 66 L.Ed. 956 (1922), and he argues that elemental due process is violated when a person lacking the capacity to understand the proceedings against him or to participate effectively in them is certified as extraditable. Consequently, petitioner contends, the magistrate should have held a hearing to assess his competency. In Charlton v. Kelly, 229 U.S. 447, 33 S.Ct. 945, 57 L.Ed. 1274 (1913), the Supreme Court noted that “impressive evidence of the insanity of the accused” had been excluded at an extradition proceeding. The Court concluded habeas relief was not warranted, however, stating, “If the evidence was only for the purpose of showing present insanity by reason of which the accused was not capable of defending the charge of crime, it is an objection which should be taken before or at the time of his trial for the crime, and heard by the court having jurisdiction of the crime.” Id. 462, 33 S.Ct. at 950. Petitioner argues that the due process and Sixth amendment right to counsel argument he is raising now was never specifically addressed in Charlton and hence Charlton is not controlling. Further, he relies on Matter of Extradition of Artukovic, 628 F.Supp. 1370, 1375 (C.D.Cal.1986), where a district court specifically rejected the government’s contention that" }, { "docid": "11075249", "title": "", "text": "the petitioner to relief.” Even where the petitioner has been afforded a full and fair hearing by the state court, a federal court judge “has the power ... to receive evidence bearing upon the applicant’s constitutional claim.” Townsend v. Sain, 372 U.S. 293, 318, 83 S.Ct. 745, 760, 9 L.Ed.2d 770 (1963). In his petition for habeas corpus relief, petitioner set forth evidence he contended controverted Judge Korman’s findings. An expanded record and hearing was then required to resolve the complicated issues of fact and law that two extradition magistrates previously had decided so disparately and to permit petitioner to demonstrate the merits of his due process claim. Should there be an appeal, the appellate court or courts will have a fully developed record. As with habeas review of state court findings, an extradition magistrate’s purely factual findings are reviewed under the clearly erroneous standard, while mixed determinations of fact and law, such as the political offense issue, and questions solely of law must be reviewed de novo. See Quinn v. Robinson, 783 F.2d 776, 791 (9th Cir.), cert. denied, 479 U.S. 882, 107 S.Ct. 271, 93 L.Ed.2d 247 (1986). Each of Judge Korman’s findings will be addressed in turn. B. Res Judicata and Double Jeopardy Judge Korman held that as a matter of law the United States Attorney was entitled to file a second extradition complaint after Magistrate Caden had denied the initial extradition request. Ahmad, 706 F.Supp. at 1036. Even though this procedure permits the United States Attorney to relitigate issues of fact and law that have been decided by a magistrate, a de novo extradition hearing is permissible and does not violate principles of res judicata or double jeopardy. See, e.g., Collins v. Loisel, 262 U.S. 426, 429-30, 43 S.Ct. 618, 619, 67 L.Ed. 1062 (1923) (double jeopardy principles are inapplicable to multiple extradition applications); United States v. Doherty, 786 F.2d 491, 501 (2d Cir.1986) (upon denial of extradition request, sole recourse for government is to file request for another proceeding; application of res judicata is inappropriate); Hooker v. Klein, 573 F.2d 1360, 1366 (9th Cir.), cert." }, { "docid": "3582311", "title": "", "text": "the accused’s competence was not a proper subject of inquiry in an extradition proceeding. Instead, the district court ruled, “The Sixth Amendment guarantees him, as all persons before the court in matters affecting life and liberty, the effective assistance of counsel. Meaningful consultation between attorney and client is an essential element of competent representation [citation omitted]. Furthermore, respondent’s Fifth Amendment right to a fair hearing requires that he be shown to have ... minimum competence. Pate v. Robinson, 383 U.S. 375, 385, 86 S.Ct. 836, 842, 15 L.Ed.2d 815 (1966).” Id. at 1375. Based on reports and testing from an attending government physician and from the court’s appointed psychiatrist, the accused was found competent. The court in Artukovic did not mention Charlton v. Kelly, and it relied solely on criminal cases which guaranty defendants a right to counsel in criminal cases and proscribe the criminal conviction of legally incompetent defendants as violative of due process. Extradition proceedings, however, are generally not considered criminal prosecutions. Sabatier v. Dabrowski, 586 F.2d 866, 869 (1st Cir.1978). It is true, as petitioner contends, that the Supreme Court in Charlton v. Kelly did not expressly address the due process argument petitioner raises. Petitioner is wrong, however, to read Charlton as holding nothing more than that a statute discussed in Charlton, Act of August 3, 1882, 22 Statutes 215, c. 378, § 3, had conferred no right to present evidence of insanity. Rather, the tenor of Charlton was that in view of the limited function of extradition proceedings — extradition proceedings were not to be regarded as a final trial at which guilt or innocence would be determined but rather as but a preliminary examination to determine whether a sufficient case had been made to justify holding the accused to answer the charge against him — and the limited scope of review of extradition matters in habeas corpus proceedings, competency was a matter to be determined by the jurisdiction trying the offense and not by the extraditing jurisdiction. We further note that we are not presented here with a claim that petitioner is catatonic, has lost" }, { "docid": "7059633", "title": "", "text": "obligated to extradite persons found within one country who have committed crimes in the other, including crimes committed before as well as after the date the treaty became effective. On September 1, 1980, pursuant to the 1978 Treaty, West Germany issued a warrant for the arrest of petitioner and Plaster, and formally requested their extradition on February 12, 1981. As for petitioner, the United States State Department formally accepted the West German government’s extradition request on March 23, 1981, and on May 11, 1981, the United States Attorney for the Eastern District of Wisconsin filed a complaint before a magistrate for that district seeking petitioner’s arrest and certification of extraditability pursuant to 18 U.S.C. § 3184. The magistrate made findings of fact and determined that the offense alleged fell within the extradition provisions of the treaty, that petitioner was the man sought by West Germany, and that the evidence submitted demonstrated probable cause to believe that petitioner committed the murder. Based on these findings, the magistrate certified petitioner to the Secretary of State for extradition and ordered his arrest. On October 13, 1981, petitioner filed a petition for a writ of habeas corpus in federal district court. In that petition, petitioner claimed that the United States violated his due process rights by attempting to extradite him in accordance with West Germany’s request under the 1978 Treaty fifteen years after the United States initially decided not to prosecute him or allow West Germany to obtain his return under the Supplementary Agreement for prosecution in West Germany. In addition, petitioner argued that the government’s actions deprived him of a speedy trial as guaranteed by the sixth amendment of the Constitution and Article VII of the NATO-SOFA Treaty, and, finally, that the United States should be estopped from extraditing him for equitable reasons. The district court first considered the scope of its habeas corpus review and rejected the government’s argument that under the Supreme Court’s decision in Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925), it could only review the limited issues the magistrate was restricted to addressing" }, { "docid": "7059636", "title": "", "text": "had demonstrated that the delay here was justified because to have extradited petitioner in 1967 would have set an adverse precedent. The district court then disposed of petitioner’s other contentions. It held that the sixth amendment right to a speedy trial was not implicated here because that provision applies only to the time period after an arrest or charges are filed. Similarly, the court observed that the Article VII guarantee in the NATO-SOFA Treaty that the party charged shall have a “prompt and speedy trial” in the foreign state could only be raised by petitioner against the West German government and in the West German courts, not in United States courts. Finally, the district court held that it did not have jurisdiction to invoke equitable principles to preclude extradition. II. On appeal, petitioner attacks the denial of the writ of habeas corpus on the grounds that the due process clause of the fifth amendment independently, and as it is purportedly invoked through the terms of the 1978 Treaty, and the “speedy trial” provision of the NATO-SOFA Treaty preclude his extradition. The government urges us not to consider the merits of petitioner’s due process claim since that is an issue allegedly not properly considered in a habeas corpus review of extradition proceedings. In all other respects, the government agrees with the district court’s disposition of the issues. We believe the district court was correct in considering the merits of petitioner’s due process claim as part of the scope of its habeas corpus review. We reject the government’s position that we are constrained by Fernandez v. Phillips, 268 U.S. 311, 45 S.Ct. 541, 69 L.Ed. 970 (1925), to consider only certain questions when an extradition is challenged. In Fernandez, Justice Holmes wrote: [Habeas corpus] is not a means for rehearing what the magistrate already has decided. The alleged fugitive from justice has had his hearing and habeas corpus is available only to inquire whether the magistrate had jurisdiction, whether the offence [sic] charged is within the treaty and, by a somewhat liberal extension, whether there was any evidence ■warranting the finding that" }, { "docid": "9171356", "title": "", "text": "461, 33 S.Ct. 945 (\"To have witnesses produced to contradict the testimony for the prosecution is obviously a very different thing from hearing witnesses for the purpose of explaining matters referred to by the witnesses for the government\"); Collins v.Loisel , 259 U.S. 309, 316-17, 42 S.Ct. 469, 66 L.Ed. 956 (1922) (explaining and reaffirming distinction drawn in Charlton ). Many courts have applied this distinction between permissible \"explanatory\" evidence and impermissible \"contradictory\" evidence, though it is often easier to describe this distinction than to apply it. See Santos , 830 F.3d at 992. III. Appellant's Challenges In most domestic habeas corpus cases, we review the factual findings of the district court for clear error and its legal determinations de novo . Carter v. Thompson , 690 F.3d 837, 843 (7th Cir. 2012). In habeas corpus cases challenging extradition decisions, however, appellate review of the district court is de novo . Both we and the district court review the magistrate judge's factual findings for clear error and his legal rulings de novo . See Santos , 830 F.3d at 1001. On appeal, Burgos Noeller offers three reasons why the magistrate judge erred in certifying his extradition: (A) the arrest warrant that Mexico submitted was invalid, so that the submission was insufficient under Article X, Section 3 of the treaty; (B) there was no probable cause to believe that he committed the crime for which extradition was sought; and (C) it would violate his due process and equal protection rights to extradite him before his claims for asylum, withholding of removal, and Convention Against Torture relief are adjudicated. We address them in turn. None is persuasive. A. Arrest Warrant To comply with the requirements of the treaty, Mexico provided a certified arrest warrant for Burgos Noeller. The warrant Mexico submitted was issued by a judge of the Twenty-Fourth Criminal Court in the Federal District on June 18, 2015. Everyone agrees that this June 18, 2015 warrant was valid when it was issued. Petitioner Burgos Noeller argues, however, that his later amparo proceeding suspended the warrant, first temporarily, then indefinitely, rendering it" }, { "docid": "3582308", "title": "", "text": "magistrate issued a certificate of extraditability and petitioner then sought review in the district court via a habeas petition. The district court correctly noted the narrow scope of review on a habeas corpus proceeding challenging extradition. Habeas corpus is available “only to inquire [1] whether the magistrate had jurisdiction, [2] whether the offense charged is within the treaty and, by a somewhat liberal extension, [3] whether there was reasonable ground to believe the accused guilty.” Sabatier v. Dabrowski, 586 F.2d 866, 868 (1st Cir.1978) (quoting Fernandez v. Phillips, 268 U.S. 311, 312, 45 S.Ct. 541, 542, 69 L.Ed. 970 (1925)); Branch v. Raiche, 618 F.2d 843, 847, 854 (1st Cir.1980) (same). Before the district court, petitioner did not contend either that the magistrate lacked jurisdiction or that the murder offense was not within the treaty. He did, however, challenge the third, probable cause, requirement arguing that insufficient competent evidence was introduced at the extradition hearing to establish probable cause that petitioner committed the murder. He also presented two other arguments. First, because of his incompetency, he could not knowledgably participate in the extradition proceedings. To extradite one who has had no meaningful input or understanding of the extradition proceedings against him would be a denial of due process. Second, state and Canadian authorities had colluded to violate his Fourth (pretextual search of home), Fifth (no Miranda warnings), and Sixth (interview without counsel’s permission) amendment rights, and now the Canadian authorities had the fruits of those violations. The only meaningful sanction to deter such improper conduct would be denial of extradition. We address each argument, though in a somewhat different order. 1. Due Process. Petitioner points out that at an extradition hearing, the accused has the right to present evidence which may explain ambiguities or doubtful elements in the case against him (but he cannot present defenses), Collins v. Loisel, 259 U.S. 309, 315-317, 42 S.Ct. 469, 471-472, 66 L.Ed. 956 (1922), and he argues that elemental due process is violated when a person lacking the capacity to understand the proceedings against him or to participate effectively in them is certified" }, { "docid": "18881090", "title": "", "text": "Webster-Ashburton Treaty contains no express provision making extradition dependent upon a finding of probable cause that the offense committed was within the applicable limitations period under federal law, we are not inclined to modify the express agreement between two sovereign nations by judicial fiat. Again, the delay in seeking extradition may be relevant to the Secretary of State in making his final determination as to whether extradition may go forward. In connection with the not insubstantial lapse of time between the alleged commission of the offenses charged and the date on which these proceedings were commenced, petitioner has further argued that the proceedings should be dismissed because of the denial of the right to a speedy prosecution and trial guaranteed by the Fifth and Sixth Amendments to the United States Constitution. See United States v. Marion, 404 U.S. 307, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971). It is well established that the fact that a foreign judicial system does not provide identical criminal safeguards as those enjoyed in this country is not controlling on the question of extradition. E. g., Neely v. Henkel, 180 U.S. 109, 122, 21 S.Ct. 302, 45 L.Ed. 448 (1901); 360 F.Supp. 270, 274 (E.D.N.Y.1973); Holmes v. Laird, 148 U.S.App.D.C. 187, 459 F.2d 1211 (1972). Thus, the Sixth Amendment’s guarantee of a speedy trial is not an appropriate consideration in the instant extradition proceedings. Cf. United States ex rel. Bloomfield v. Gengler, 507 F.2d 925, 928 (2d Cir. 1974) (that proceedings would have been barred by double jeopardy clause if initiated in this country not a bar to extradition). PROBABLE CAUSE The remainder of petitioner’s arguments are addressed to the sufficiency of the evidence to warrant the magistrate’s finding of probable cause. It is well established that the appropriate standard to review the magistrate’s finding is “whether the evidence showed a reasonable ground to believe the accused guilty.” Garcia-Guillern v. United States, supra. Petitioner has argued by analogy to the test fashioned by the Supreme Court in Aguilar v. Texas, 378 U.S. 108, 84 S.Ct. 1509, 12 L.Ed.2d 723 (1964), a magistrate in making a determination" } ]

[ { "docid": "3406789", "title": "", "text": "has exhibited an actual expectation of privacy.” Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (citation omitted). The objective prong requires a court to determine whether the defendant’s “expectation of privacy is ‘one that society is prepared to recognize as reasonable.’ ” Correa, 653 F.3d at 190 (quoting Bond, 529 U.S. at 338, 120 S.Ct. 1462). The question here is whether Dutrieville had an objectively reasonable expectation of privacy in the home and his' overnight bag. A Dutrieville argues that he had an objectively reasonable expectation of privacy in the home since he was an overnight guest staying at the home with Newell’s consent. Generally, a person’s “status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). This is because a guest typically “seeks shelter in another’s home precisely because it provides him with privacy, a place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id. at 99, 110 S.Ct. 1684. Moreover, “hosts will more likely than not respect the privacy interests of their guests.” Id. Accordingly, acknowledging “that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the everyday expectations of privacy that we all share.” Id. at 98, 110 S.Ct. 1684. Though most overnight guests have an objectively reasonable expectation of privacy, Dutrieville was not like most overnight guests. The key distinction is that the protection order prohibited Dutrieville from entering the home and from having any contact with Newell. Pursuant to Pennsylvania law, Dutrieville’s mere presence in the home violated the order and exposed him to criminal liability. See 23 Pa. Cons.Stat. § 6114(a). Importantly, Newell’s consent could not override the terms of the protection order. Consequently, like a trespasser, a squatter, or any individual who “occupies] a piece of property unlawfully,” Dutrieville’s presence in the home was “wrongful,” and" } ]

[ { "docid": "3406791", "title": "", "text": "therefore any expectation of privacy he may have had was not one that society is prepared to recognize as reasonable. See Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). B Dutrieville also argues that, even if he lacked a legitimate expectation of privacy in the home, he had one in his overnight bag.. First, according to Dutrieville, the protection order did not extend to any of his belongings, and, therefore, while his presence in the home may have been unlawful despite Newell’s consent, his bag’s presence was not. Second, he attempts to analogize his case to cases holding that an individual retains a legitimate expectation of privacy in bags kept with a third party. See, e.g., United States v. Waller, 426 F.3d 838, 844-45 (6th Cir.2005) (holding that defendant had a legitimate expectation of privacy in luggage stored at friend’s, residence); United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir.1992) (noting that overnight bags “historically command a high degree of privacy”); United States v. Most, 876 F.2d 191, 197-98 (D.C.Cir.1989) (holding that defendant had a legitimate expectation of privacy in a bag entrusted to store clerks). These arguments are unavailing. The standing question turns on whether his expectation of privacy was objectively reasonable. Correa, 653 F.3d at 190. Because Dutrieville’s mere presence in the home was unlawful, it follows that he lacked an objectively reasonable expectation of privacy in a bag that he brought with him during an unlawful visit. This is because a person legally prohibited from entering a particular place cannot reasonably expect to use that place as a “private repository for his personal effects.” United States v. Wellons, 32 F.3d 117, 119 (4th Cir.1994) (internal quotation marks omitted). After all, if his personal effects are stored at the prohibited place, he cannot lawfully access them and therefore cannot reasonably expect that he will be able to exercise control over -them or that they “will remain undisturbed.” See United States v. Jackson, 585 F.2d 653, 658 (4th Cir.1978) (noting that a trespasser on another’s property or an individual on" }, { "docid": "22536519", "title": "", "text": "protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “Fourth Amendment rights are personal rights which ... may not be vicariously asserted. ” United States v. Quinn, 475 U.S. 791, 794, 106 S.Ct. 1623, 89 L.Ed.2d 803 (1986) (quoting Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)) (emphasis in Quinn). In order to challenge a search under the Fourth Amendment, a defendant bears the burden of proving that he had a “legitimate expectation of privacy” in the invaded place. United States v. Bynum, 604 F.3d 161,164 (4th Cir.2010). For an expectation of privacy to be legitimate, it must be objectively reasonable; in other words, it must be an expectation “that society is prepared to recognize as reasonable.” Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (internal quotations omitted); see also Doe v. Broderick, 225 F.3d 440, 450 (4th Cir.2000). The government argues that the district court correctly concluded that as an unregistered hotel guest, Bullard had no legitimate expectation of privacy in Room 318. The government points to the fact that the hotel required all guests to register and that North Carolina law requires that “[a]ny person occupying any room or rooms in any lodging house or hotel shall register or cause himself to be registered where registration is required by such lodging house or hotel.” N.C. GemStat. § 72-30. And, it contends, even though a registered hotel guest clearly has a reasonable expectation of privacy in his hotel room, see Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964), an unregistered guest not legitimately on hotel premises cannot enjoy the same expectation. Bullard counters by asserting that even though the hotel had a nominal “no registered guests” policy, he nevertheless had developed a reasonable expectation of privacy in Room 318 because he had stayed there for three days without anyone at the hotel objecting to his presence. Cf. United States v. Kitchens, 114 F.3d 29," }, { "docid": "20128289", "title": "", "text": "decided before reaching the question of whether a search was or was not constitutional. See, e.g., United States v. Varlack Ventures, Inc., 149 F.3d 212, 215-16 (3d Cir.1998) (assuming, without deciding, that appellant had standing to challenge search but nevertheless reversing district court’s suppression of evidence). The Court may therefore affirm the district court on any ground supported by the record, whether because Kennedy lacked standing to challenge the search, or because the officers’ search did not run afoul of the Fourth Amendment. E.g., United States v. Mussare, 405 F.3d 161, 168 (3d Cir.2005). Fourth Amendment standing “requires that the individual challenging the search have a reasonable expectation of privacy in the property searched ... and that he manifest a subjective expectation of privacy in the property searched[.]” United States v. Baker, 221 F.3d at 441 (citing Rakas, 439 U.S. at 143, 99 S.Ct. 421; California v. Greenwood, 486 U.S. 35, 39, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988)). With regard to the objective prong of this test, which is at issue here, a reasonable or legitimate expectation of privacy must have “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (quoting Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421); see also, e.g., Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (“Our Fourth Amendment analysis .... inquire[s] whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.”) (internal quotation and citation omitted); Carter, 525 U.S. at 101, 119 S.Ct. 469 (1998) (Kennedy, J., concurring) (“The application of [the standing] rule involves consideration of the kind of place in which the individual claims the privacy interest and what expectations of privacy are traditional and well recognized.”). While “[expectations of privacy protected by the Fourth Amendment ... need not be based on a common-law interest in real or personal property, ... by focusing on" }, { "docid": "23176090", "title": "", "text": "voluntarily offered his clothing to police. The district court denied the motion to suppress. At trial a witness testified he had seen the .22 caliber rifle with the broken stock in Wiest’s car, and Wiest had told him not to touch it because it was loaded and that he had used it “for a couple different jobs.” Two other witnesses testified that Wiest said he committed the robberies. The jury also saw surveillance video from two robberies, where the robber appears to be wearing clothes that look like some of the clothes recovered from Ms. Martins’s home. II. A. Wiest argues that the district court erred in denying his motion to suppress the clothing found in Ms. Martins’s home. He contends that she acted as an instrument or agent of the government when she took his clothes and turned them over to police, in violation of the Fourth Amendment. This court reviews de novo a district court’s conclusions of law regarding a motion to suppress, and its findings of fact for clear error. United, States v. Flores-Sandoval, 474 F.3d 1142, 1144 (8th Cir. 2007). The threshold issue is whether Wiest had a legitimate expectation of privacy. “The Fourth Amendment protects ‘against unreasonable searches and seizures,’ but its protections are personal and cannot be asserted by persons lacking a ‘legitimate expectation of privacy’ in the place searched.” United States v. Kuenstler, 325 F.3d 1015, 1020 (8th Cir.2003) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). Further, “status as an overnight guest is alone enough to show that defendant had an expectation of privacy in the home that society is prepared to recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). However, “[f]rom the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with ... a place where [the guest] and his possessions will not be dis turbed by anyone but his host and those his host allows inside.” Id. at 99, 110 S.Ct. 1684 (emphasis added). According to the record, Wiest" }, { "docid": "5703183", "title": "", "text": "reasonable expectation that they would not be subject to video surveillance while in Room 303 after the confidential informants left the room.” The government appeals this ruling. II The Fourth Amendment protects people rather than places, but “the extent to which the Fourth Amendment protects people may depend upon where those people are.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). To invoke the protections of the Fourth Amendment, a person must show he had a “legitimate expectation of privacy.” To establish a “legitimate” expectation of privacy, he must demonstrate a subjective expectation that his activities would be private, and he must show that his expectation was “ ‘one that society is prepared to recognize as reasonable.’ ” Bond v. United States, — U.S. -, -, 120 S.Ct. 1462, 1465, 146 L.Ed.2d 365 (2000) (quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)); see also Rakas v. Illinois, 439 U.S. 128, 143-44, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). We review for clear error the district court’s underlying factual findings, and we review de novo the lawfulness of a search and seizure. See United States v. Hudson, 100 F.3d 1409, 1414 (9th Cir.1996). Whether a citizen’s expectation of privacy was objectively reasonable is a question of law reviewed de novo. See United States v. Fultz, 146 F.3d 1102, 1104 (9th Cir.1998). III In finding for defendants, the district court distinguished Minnesota v. Carter, 525 U.S. 83, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998), in which the Supreme Court held that the defendants had no legitimate expectation of privacy in another person’s apartment which they entered for a brief period to conduct a narcotics transaction. The district court held that Carter was not controlling because the governmental intrusion in this case (the use of a hidden surveillance camera) was far more egregious than the intrusion in Carter (visual observation through a ground-floor apartment window). The government responds that the severity of the intrusion is irrelevant to whether a defendant has a legitimate expectation of privacy in a particular place." }, { "docid": "15723886", "title": "", "text": "shown that he sought to preserve something as private.... Second, we inquire whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.” See Bond v. United States, 729 U.S. 334, 120 S.Ct. 1462, 1465, 146 L.Ed.2d 365 (2000) (citation, internal quotation marks, and alterations omitted). Whether a legitimate expectation of privacy exists in a particular place or item is a determination to be made on a case-by-case basis. See United States v. Brown, 635 F.2d 1207, 1211 (6th Cir.1980). “Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421. The courts have considered a number of factors in identifying those expectations which qualify for Fourth Amendment protection. Although the most obvious among the factors is the person’s proprietary or possessory interest in the place to be searched or item to be seized, a property right alone is not determinative of whether the individual reasonably expected “freedom from governmental intrusion.” Mancusi v. DeForte, 392 U.S. 364, 368, 88 S.Ct. 2120, 20 L.Ed.2d 1154 (1968). Other factors include whether the defendant has the right to exclude others from the place in question; whether he had taken normal precautions to maintain his privacy; whether he has exhibited a subjective expectation that the area would remain free from governmental intrusion; and whether he was legitimately on the premises. See United States v. Cassity, 720 F.2d 451, 456 (6th Cir.1983), vacated and remanded on other grounds, 468 U.S. 1212, 104 S.Ct. 3581, 82 L.Ed.2d 879 (1984), rev’d on other grounds, 604 F.Supp. 1566 (E.D.Mich. 1985), aff'd, 807 F.2d 509 (1986); see also Rawlings v. Kentucky, 448 U.S. 98, 105, 100 S.Ct. 2556, 65 L.Ed.2d 633 (1980); United States v. Haydel, 649 F.2d 1152 (5th Cir.1981). In this case, Defendant exhibited an actual subjective expectation of privacy in the basement by hiding the cocaine there. See Bond, 120 S.Ct. at 1465 (finding that" }, { "docid": "20501465", "title": "", "text": "does not occur ... unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable.’ ” Kyllo v. United States, 533 U.S. at 33, 121 S.Ct. 2038 (emphasis in original) (quoting California v. Ciraolo, 476 U.S. at 211, 106 S.Ct. 1809). A “reasonable expectation of privacy” is “said to be an expectation ‘that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.’ ” United States v. Jones, 132 S.Ct. at 951. See United States v. Harmon, 785 F.Supp.2d at 1157 (“To decide whether a reasonable expectation of privacy exists, courts consider concepts of real or personal property law .... ”). In analyzing whether an expectation of privacy is reasonable in the Fourth Amendment context based on property law, “arcane distinctions developed in property and tort law between guests, licensees, invitees, and the like, ought not to control.” Rakas v. Illinois, 439 U.S. at 143 & n. 12, 99 S.Ct. 421. While ownership or lawful possession is not determinative under the Katz v. United States reasonable-expectation-of-privacy test, it is often a dispositive factor; because the Fourth Amendment is a personal right, a defendant bears the burden of demonstrating “that he gained possession [of the area searched] from the owner or someone with the authority to grant possession.” United States v. Arango, 912 F.2d 441, 445-46 (10th Cir.1990). i. Subjective Expectation of Privacy. A defendant maintains a subjective expectation of privacy when the defendant “has shown that ‘he sought to preserve something as private.’” Bond v. United States, 529 U.S. at 338, 120 S.Ct. 1462 (internal alterations omitted)(quoting Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979)). Thus, there is no reasonable expectation of privacy in otherwise private information disclosed to a third party. “[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public ... is not a subject of Fourth Amendment protection.” Katz v. United States," }, { "docid": "14492857", "title": "", "text": "a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed.” Rakas, 439 U.S. at 134, 99 S.Ct. 421. Chaves, on the other hand, did have a reasonable expectation of privacy in the warehouse, and the district court erred in its finding to the contrary. As the government recognizes, lack of ownership is not disposi-tive. See United States v. Garcia, 741 F.2d 363, 365-66 (11th Cir.1984) (“[Ljegal ownership is not a prerequisite for a legitimate expectation of privacy.”). As the Supreme Court has recognized, in a variety of contexts, even where a defendant does not own the property searched, he or she may nonetheless have a reasonable expectation of privacy in that place by virtue of his or her relationship with that place. See Carter, 119 S.Ct. at 474 (holding that defendants lacked a legitimate expectation of privacy because they did not have a relationship with the home owner, but rather were “simply permitted on the premises”); id. at 478-79 (Kennedy, J., concurring) (recognizing that “almost all social guests have a legitimate expectation of privacy, and hence protection against unreasonable searches, in their host’s home,” but finding no such expectation in this case because defendants only had a “fleeting and insubstantial connection with Thompson’s home”); Minnesota v. Olson, 495 U.S. 91, 96-100, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990) (holding that an overnight guest had a legitimate expectation of privacy in his host’s home); O’Connor v. Ortega, 480 U.S. 709, 714-19, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (recognizing that, in some circumstances, an employee has a reasonable expectation of privacy in his or her workplace). Although Chaves did not own or formally rent the warehouse, we believe that his connection to the warehouse was sufficient to establish a reasonable expectation of privacy in the warehouse. See United States v. Baron-Mantilla, 743 F.2d 868, 870 (11th Cir.1984) (finding that defendant, who did not own or rent premises searched, “could have established a legitimate expectation of priva cy by demonstrating ‘an unrestricted right of occupancy or custody and control of the premises as" }, { "docid": "23357595", "title": "", "text": "shed during the night before the police arrived. Defendants also claim that, because the government argued at the arrest and bail hearings that Defendants exercised dominion and control over the items seized in the shed, the government should be estopped from making an inconsistent argument with respect to standing. 1. Standing Fourth Amendment rights cannot be asserted vicariously. Rakas v. Illinois, 439 U.S. 128, 134, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978); United States v. Johns, 851 F.2d 1131, 1135 (9th Cir.1988). In order to claim the protections of the Fourth Amendment here, Defendants must establish that they had an expectation of privacy in the shed and that their expectation was reasonable. Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998). The reasonableness of an expectation of privacy is evaluated “either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421. Defendants have the burden of establishing that, under the totality of the circumstances, the search or the seizure violated their legitimate expectation of privacy. Sarkisian, 197 F.3d at 986. Defendants argue that they had a legitimate expectation of privacy in the shed because they were renters of property used for commercial purposes or were overnight guests. It is true that an individual can have a legitimate expectation of privacy in a commercial area. Id. Similarly, an overnight guest has a legitimate expectation of privacy in the host’s property. Minnesota v. Olson, 495 U.S. 91, 96 n. 4, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); United States v. Gamez-Orduno, 235 F.3d 453, 458 (9th Cir.2000). Under the present facts, however, neither theory affords Defendants standing to contest the search of the shed. In United States v. Davis, 932 F.2d 752, 757 (9th Cir.1991), this court held that the defendant had standing to contest the search of a friend’s apartment when the defendant previously had resided at the apartment and still possessed a key; had permission to come and go as he pleased; had independent access" }, { "docid": "3406790", "title": "", "text": "place where he and his possessions will not be disturbed by anyone but his host and those his host allows inside.” Id. at 99, 110 S.Ct. 1684. Moreover, “hosts will more likely than not respect the privacy interests of their guests.” Id. Accordingly, acknowledging “that an overnight guest has a legitimate expectation of privacy in his host’s home merely recognizes the everyday expectations of privacy that we all share.” Id. at 98, 110 S.Ct. 1684. Though most overnight guests have an objectively reasonable expectation of privacy, Dutrieville was not like most overnight guests. The key distinction is that the protection order prohibited Dutrieville from entering the home and from having any contact with Newell. Pursuant to Pennsylvania law, Dutrieville’s mere presence in the home violated the order and exposed him to criminal liability. See 23 Pa. Cons.Stat. § 6114(a). Importantly, Newell’s consent could not override the terms of the protection order. Consequently, like a trespasser, a squatter, or any individual who “occupies] a piece of property unlawfully,” Dutrieville’s presence in the home was “wrongful,” and therefore any expectation of privacy he may have had was not one that society is prepared to recognize as reasonable. See Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978). B Dutrieville also argues that, even if he lacked a legitimate expectation of privacy in the home, he had one in his overnight bag.. First, according to Dutrieville, the protection order did not extend to any of his belongings, and, therefore, while his presence in the home may have been unlawful despite Newell’s consent, his bag’s presence was not. Second, he attempts to analogize his case to cases holding that an individual retains a legitimate expectation of privacy in bags kept with a third party. See, e.g., United States v. Waller, 426 F.3d 838, 844-45 (6th Cir.2005) (holding that defendant had a legitimate expectation of privacy in luggage stored at friend’s, residence); United States v. Salinas-Cano, 959 F.2d 861, 864 (10th Cir.1992) (noting that overnight bags “historically command a high degree of privacy”); United States v. Most, 876" }, { "docid": "10596918", "title": "", "text": "When Philips attempted to stash the bag of cocaine in the shed, he did not simply open the shed to access the interior but instead had to lift up the tin roof and drop it inside. Thompson testified that she was not aware that the shed could be accessed in this manner. Thus, even assuming that Phillips could establish that he had a reasonable privacy interest in the Thompson residence based on his prior relationship with the owner despite the fact that he was not a guest on the evening in question, Phillips has not shown that he was using the shed with the permission of Thompson or that Thompson “was willing to share her privacy [interest in the shed]” with the defendant. See Olson, 495 U.S. at 99, 110 S.Ct. 1684. Rather, the circumstances presented are more akin to those described in Rakas v. Illinois, 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), in which the Supreme Court stated: a “legitimate” expectation of privacy by definition means more than a subjective expectation of not being discovered. A burglar plying his trade in a summer cabin during the off season may have a thoroughly justified subjective expectation of privacy, but it is not one which the law recognizes as “legitimate.” His presence ... is “wrongful”; his expectation is not “one that society is prepared to recognize as reasonable.” 439 U.S. 128, 143 n. 12, 99 S.Ct. 421, 58 L.Ed.2d 387. In Vega, we clarified that in this example, “the burglar’s expectation of privacy loses its legitimacy not because of the wrongfulness of his activity, but because of the wrongfulness of his presence in the place where he purports to have an expectation of privacy.” 221 F.3d at 797 (citing Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421). Applying this principle here, we conclude that Phillips cannot show that he was legitimately in the Thompson yard because Thompson never gave him permission to use the shed; as to the shed, Phillips’ presence was wrongful. See Vega, 221 F.3d at 797. We therefore are unpersuaded" }, { "docid": "8186429", "title": "", "text": "nom., Stewart v. U.S., 431 U.S. 932, 97 S.Ct. 2640, 53 L.Ed.2d 249 (1977). In general, a person who is aggrieved by an illegal search and seizure only through the introduction of damaging evidence secured by a search of a third person’s premises or property has not had any of his Fourth Amendment rights infringed. Rakas v. Illinois, 439 U.S. 128, 99 S.Ct. 421, 425, 58 L.Ed.2d 387 (1978), citing Alderman v. United States, 394 U.S. 165, 174, 89 S.Ct. 961, 966, 22 L.Ed.2d 176 (1969). In order to have Fourth Amendment standing, a defendant must show 1) an actual, subjective expectation of privacy with respect to the place being searched or items being seized, and 2) that the expectation is one that society would recognize as reasonable. United States v. Doe, 801 F.Supp. 1562, 1572 (E.D.Tex.1992), citing United States v. Lee, 898 F.2d 1034, 1037-1038 (5th Cir.1990). Wilson asserts that, under Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990), he has standing. We agree. Although the facts in Olson are dissimilar, its language is broad: Olson states that “... status' as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable.” Olson, 495 U.S. at 96-97,110 S.Ct. at 1688. In the instant case, Stiles lived in a hotel room and had lived there for approximately three years. Wilson was an overnight guest in Stiles’ “home”. Thus, Wilson had an Olson expectation of privacy and he may challenge the district court’s ruling on his motion to suppress. Accordingly, we find that the district court erred in its determination that Wilson had no expectation of privacy in Stiles’ hotel-residence. Due to his Olson expectation of privacy, Wilson has discharged his burden to show that he has standing to challenge ■ the search and seizure of the checkbook. The burden thus shifts to the government to justify the warrantless search and seizure of the checkbook. Relying on United States v. Alvarez, 6 F.3d 287, 289 (5th Cir.1993), cert. denied, — U.S." }, { "docid": "22536518", "title": "", "text": "challenges the district court’s denial of his motion to suppress, contending that the search of Room 318 violated his Fourth Amendment rights. Bullard next argues that his sentence is unconstitutional because the disparities between crack and powder cocaine sentences violate equal protection and due process. Finally, Bullard claims that the FSA, which went into effect during the pendency of his appeal, should be applied retroactively. We address each argument in turn. A. Bullard first challenges the district court’s denial of his motion to suppress. When reviewing a district court’s denial of a motion to suppress, “we review factual findings for clear error and legal determinations de novo,” and view the evidence “in the light most favorable to the Government.” United States v. Green, 599 F.3d 360, 375 (4th Cir.2010). 1. The parties first disagree over whether the district court properly concluded that Bullard lacked a legitimate expectation of privacy in Room 318. Without such an expectation, Bullard would be unable to assert a Fourth Amendment challenge to the search of that room. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. “Fourth Amendment rights are personal rights which ... may not be vicariously asserted. ” United States v. Quinn, 475 U.S. 791, 794, 106 S.Ct. 1623, 89 L.Ed.2d 803 (1986) (quoting Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)) (emphasis in Quinn). In order to challenge a search under the Fourth Amendment, a defendant bears the burden of proving that he had a “legitimate expectation of privacy” in the invaded place. United States v. Bynum, 604 F.3d 161,164 (4th Cir.2010). For an expectation of privacy to be legitimate, it must be objectively reasonable; in other words, it must be an expectation “that society is prepared to recognize as reasonable.” Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (internal quotations omitted); see also Doe v. Broderick, 225 F.3d 440, 450 (4th Cir.2000). The government argues that the district court" }, { "docid": "23220597", "title": "", "text": "personal, and may be enforced only by persons whose own protection under the Amendment has been violated. Rakas v. Illinois, 439 U.S. 128, 133-34, 99 S.Ct. 421, 424-26, 58 L.Ed.2d 387 (1978). To contest the validity of a search, a defendant must demonstrate that he himself exhibited an actual subjective expectation of privacy in the area searched, and that this subjective expectation is one that society is willing to accept as reasonable. Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 2580, 61 L.Ed.2d 220 (1979) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516-17, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). A defendant lacks “standing” in the Fourth Amendment context when his contacts with the searched premises are so attenuated that no expectation of privacy he has in those premises could ever be considered reasonable. See Rakas, 439 U.S. at 137-38, 99 S.Ct. at 427-28. Although the extent of a defendant’s property or possessory interest in the place searched is a factor generally considered in determining the reasonableness of a defendant’s expectation of privacy, United States v. Osorio, 949 F.2d 38, 40 (2d Cir.1991), a defendant’s lack of such an interest does not rule out the possibility that he may still show a reasonable expectation of privacy. See Minnesota v. Olson, 495 U.S. 91, 99, 110 S.Ct. 1684, 1689, 109 L.Ed.2d 85 (1990) (houseguest has legitimate expectation of privacy); Rakas, 439 U.S. at 143-144 n. 12, 99 S.Ct. at 430 n. 12. Residence may give rise to an expectation of privacy, United States v. Babwah, 972 F.2d 30, 35 (2d Cir.1992), but an individual may also have a “sufficient interest in a place other than his own home so that the Fourth Amendment protects him.” Rakas, 439 U.S. at 142, 99 S.Ct. at 430. For instance, where a guest has permission to use an apartment, is given a key, and uses the apartment in the owner’s absence, society may be prepared to recognize the guest’s privacy, even though no property interest exists. Jones v. United States, 362 U.S. 257, 259, 80 S.Ct. 725, 730," }, { "docid": "14944310", "title": "", "text": "to “gain an unfair tactical advantage” at the suppression hearing. See Dring, 930 F.2d at 695. Armenta therefore has failed to demonstrate bad faith by the government. Because lack of bad faith was itself sufficient for rejection of Armenta’s motion to dismiss, we need not consider whether the district court correctly found that Armenta was not prejudiced by Batiz-Guzman’s unavailability. Accordingly, the district court properly denied Armenta’s motion to dismiss the indictment. III. MOTION TO SUPPRESS Armenta cannot challenge the search of the Clifford house or motor home on Fourth Amendment grounds unless he demonstrates that he has “standing” to do so, i.e., that he had a legitimate expectation of privacy in those places. See Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 430, 58 L.Ed.2d 387 (1978); Singleton, 987 F.2d at 1447. To demonstrate a “legitimate expectation of privacy,” Armenta must show that he had an actual subjective expectation of privacy in the Clifford house and motor home, and that society is prepared to recognize that expectation. United States v. Davis, 932 F.2d 752, 756 (9th Cir.1991). A. The Clifford House Armenta argues that he has standing to challenge the search at the Clifford house because he was an overnight guest at the house. See Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 1687-88, 109 L.Ed.2d 85 (1990) (defendant’s “status as an overnight guest is alone enough to show that he had an expectation of privacy in the home that society is prepared to recognize as reasonable”). In support of this argument, Armenta presented the following evidence: his own sworn declaration stating that he was an overnight guest; Kraus’ testimony that Armenta had spent the night inside the house; the fact that his wallet, baptismal certificate, and social security card application were found inside the house; and his attorney’s declaration that Batiz-Guzman would testify that “Ar-menta was a guest at the Clifford house and had run of the house.” The district court held that this evidence was insufficient to demonstrate that Armenta was, in fact, an “overnight guest” at the Clifford house; the court accordingly" }, { "docid": "15723885", "title": "", "text": "to challenge whether the scope of the warrant included the basement area, and we also agree with Defendant that the officer exceeded the scope of the warrant in searching the basement area. 1. Whether Defendant had a Legitimate Expectation of Privacy in the Basement Area of the Two-Family Dwelling Because Fourth Amendment rights are “personal,” see Rakas v. Illinois, 439 U.S. 128, 140, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978), the central inquiry in any suppression hearing is whether the defendant challenging the admission of evidence has shown a legitimate expectation of privacy in the place searched or the thing seized. Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); see Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990); United States v. Kincaide, 145 F.3d 771, 779 (6th Cir.1998). A determination of whether a legitimate expectation of privacy exists involves a two-part inquiry. “First, we ask whether the individual, by conduct, has exhibited an actual expectation of privacy; that is, whether he has shown that he sought to preserve something as private.... Second, we inquire whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.” See Bond v. United States, 729 U.S. 334, 120 S.Ct. 1462, 1465, 146 L.Ed.2d 365 (2000) (citation, internal quotation marks, and alterations omitted). Whether a legitimate expectation of privacy exists in a particular place or item is a determination to be made on a case-by-case basis. See United States v. Brown, 635 F.2d 1207, 1211 (6th Cir.1980). “Legitimation of expectations of privacy by law must have a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421. The courts have considered a number of factors in identifying those expectations which qualify for Fourth Amendment protection. Although the most obvious among the factors is the person’s proprietary or possessory interest in the place to be searched or item to be seized," }, { "docid": "20128290", "title": "", "text": "or legitimate expectation of privacy must have “a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 U.S. 83, 88, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) (quoting Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421); see also, e.g., Bond v. United States, 529 U.S. 334, 338, 120 S.Ct. 1462, 146 L.Ed.2d 365 (2000) (“Our Fourth Amendment analysis .... inquire[s] whether the individual’s expectation of privacy is one that society is prepared to recognize as reasonable.”) (internal quotation and citation omitted); Carter, 525 U.S. at 101, 119 S.Ct. 469 (1998) (Kennedy, J., concurring) (“The application of [the standing] rule involves consideration of the kind of place in which the individual claims the privacy interest and what expectations of privacy are traditional and well recognized.”). While “[expectations of privacy protected by the Fourth Amendment ... need not be based on a common-law interest in real or personal property, ... by focusing on legitimate expectations of privacy in Fourth Amendment jurisprudence, the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment.” Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421. Therefore, “one who owns or lawfully possesses or controls property will in all likelihood have a legitimate expectation of privacy by virtue of [his] right to exclude.” Id.; see also United States v. Acosta, 965 F.2d 1248, 1256-57 (3d Cir.1992) (“Recent cases ... reflect the Supreme Court’s continued consideration of property interests in determining Fourth Amendment privacy interests.”) With these considerations in mind, we turn to the record before us. C. The District Court relied on our decision in United States v. Baker, 221 F.3d 438 (3d Cir.2000), in reaching its conclusion that Kennedy had standing to challenge the search of the car. In Baker, the defendant was arrested for driving a car to his parole office, because driving was an express violation of his parole conditions. The parole officers searched the car," }, { "docid": "1365629", "title": "", "text": "defendants can claim that their Fourth Amendment rights were violated when officers entered the residence, this court must decide whether Pollard and Rodriguez had “an expectation of privacy in the place searched, and whether [their] expectation^ were] reasonable.” Carter, 119 S.Ct. at 469. A defendant must satisfy a two-pronged test to show a legitimate expectation of privacy: 1) he must manifest an actual, subjective expectation of privacy; and 2) that expectation is one that society is prepared to recognize as legitimate. See Sangineto-Miranda, 859 F.2d at 1510. A. Standing of Pollard On appeal, Pollard argues he had a legitimate expectation of privacy in Howard’s home under Minnesota v. Olson, 495 U.S. 91, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). The government argues that Pollard fails to meet the “heightened” burden under Carter, 119 S.Ct. at 469, for a defendant claiming a reasonable expectation of privacy in a dwelling other than his own home, where the defendant’s presence is for an illegal commercial or business purpose. See United States v. Gordon, 168 F.3d 1222, 1226 (10th Cir.1999). The government contends that Pollard lacks standing because he used the Howard home as a convenient site for himself and Rodriguez to meet the customer to complete an illegal sale of cocaine. In Olson, 495 U.S. at 98, 110 S.Ct. 1684, the Supreme Court held that an overnight guest had a legitimate expectation of privacy in his host’s home and thus could challenge officers’ warrantless entry into the home to arrest him. The Olson court recognized that “[s]taying overnight in another’s home is a longstanding social custom that serves functions recognized as valuable by society.” Id. But more recently, in Carter, 119 S.Ct. at 473-74, the Court held that defendants who were in another’s apartment solely for the purpose of packaging cocaine had no legitimate expectation of privacy because they failed to demonstrate they were guests on the premises for a personal occasion, rather than for strictly business purposes. The Court determined that the overnight guest in Olson and someone legitimately on the premises represented different ends of the privacy spectrum, and that “the" }, { "docid": "5184509", "title": "", "text": "long he stays there; rather, he expects each of those movements to remain “disconnected and anonymous,” Nader v. Gen. Motors Corp., 25 N.Y.2d 560, 572, 307 N.Y.S.2d 647, 255 N.E.2d 765 (1970) (Breitel, J., concurring). In this way the extended recordation of a person’s movements is, like the “manipulation of a bus passenger’s carry-on” canvas bag in Bond, not what we expect anyone to do, and it reveals more than we expect anyone to know. 529 U.S. at 339, 120 S.Ct. 1462. 3. Was Jones’s expectation of privacy reasonable? It does not apodictically follow that, because the aggregation of Jones’s movements over the course of a month was not exposed to the public, his expectation of privacy in those movements was reasonable; “legitimation of expectations of privacy must have a source outside the Fourth Amendment,” such as “understandings that are recognized or permitted by society,” United States v. Jacobsen, 466 U.S. 109, 123 n. 22, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (quoting Rakas, 439 U.S. at 143 n. 12, 99 S.Ct. 421). So it is that, because the “Congress has decided ... to treat the interest in ‘privately’ possessing cocaine as illegitimate,” “governmental conduct that can reveal whether a substance is cocaine, and no other arguably ‘private’ fact, compromises no legitimate privacy interest.” Id. at 123, 99 S.Ct. 421. The Government suggests Jones’s expectation of privacy in his movements was unreasonable because those movements took place in his vehicle, on a public way, rather than inside his home. That the police tracked Jones’s movements in his Jeep rather than in his home is certainly relevant to the reasonableness of his expectation of privacy; “in the sanctity of the home,” the Court has observed, “all details are intimate details,” Kyllo, 533 U.S. at 37, 121 S.Ct. 2038. A person does not leave his privacy behind when he walks out his front door, however. On the contrary, in Katz the Court clearly stated “what [one] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” 389 U.S. at 351, 88 S.Ct. 507! Or, as" }, { "docid": "23176091", "title": "", "text": "v. Flores-Sandoval, 474 F.3d 1142, 1144 (8th Cir. 2007). The threshold issue is whether Wiest had a legitimate expectation of privacy. “The Fourth Amendment protects ‘against unreasonable searches and seizures,’ but its protections are personal and cannot be asserted by persons lacking a ‘legitimate expectation of privacy’ in the place searched.” United States v. Kuenstler, 325 F.3d 1015, 1020 (8th Cir.2003) (quoting Rakas v. Illinois, 439 U.S. 128, 143, 99 S.Ct. 421, 58 L.Ed.2d 387 (1978)). Further, “status as an overnight guest is alone enough to show that defendant had an expectation of privacy in the home that society is prepared to recognize as reasonable.” Minnesota v. Olson, 495 U.S. 91, 96-97, 110 S.Ct. 1684, 109 L.Ed.2d 85 (1990). However, “[f]rom the overnight guest’s perspective, he seeks shelter in another’s home precisely because it provides him with ... a place where [the guest] and his possessions will not be dis turbed by anyone but his host and those his host allows inside.” Id. at 99, 110 S.Ct. 1684 (emphasis added). According to the record, Wiest spent the night before he was arrested at Ms. Martins’s home, giving him “status as an overnight guest,” with some expectation of privacy. However, that expectation is limited by the fact that Ms. Martins lived in the home, and shared use of the laundry room. Wiest had no legitimate expectation that his possessions were private from Ms. Martins. Wiest argues that Ms. Martins was a “government actor” for Fourth Amendment purposes. Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the amendment protects against such intrusion if the private party acted as an instrument or agent of the government.... Whether a private party should be deemed an agent or instrument of the government for Fourth Amendment purposes necessarily turns on the degree of the government’s participation in the private party’s activities, a question that can only be resolved in light of all the circumstances. Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 604, 109 S.Ct. 1402, 103 L.Ed.2d" } ]

[ { "docid": "18781441", "title": "", "text": "§ 633.205(e), the Secretary committed himself to affording future relief to disappointed applicants like Campesinos Unidos, and has failed to do so. 3. Prospective Relief Campesinos Unidos asks us to designate it as a future recipient of JTPA funding, or, in the alternative, to remand with instructions to the Secretary directing him to award it preference in future funding periods. It argues that preferential status in future grant competitions is precisely the relief contemplated by the Department’s own regulation, 20 C.F.R. § 633.205(e). In pertinent part, the regulation reads: The available remedy under such an appeal will be the right to be designated in the future rather than a retroactive or immediately effective selection status. Therefore, in the event the AU rules that the organization should have been selected and the organization continues to meet the requirements of this Part, the Department will select and fund the organization within 90 days of the AU’s decision, unless the end of the 90-day period is within 6 months of the end of the funding period. In interpreting the regulation, Campesinos Unidos stresses the phrase “right to be designated in the future,” and makes the argument that, in light of the time it takes to perfect an appeal within the agency, if that phrase does not mean in future grant competitions, it means nothing. Campesinos Unidos would have us contrast “in the future” only with “now” or “immediately.” It argues that the regulation provides for both short and long-term prospective relief, depending on whether a favorable decision is received during or after the grant period. The wording of the regulation raises some doubt, in that the colloquial import of “in the future” is not “in the near term.” However, our task is to interpret the regulation as a whole, in light of the overall statutory and regulatory scheme, and not to give force to one phrase in isolation. We are aided by contrasting the regulation as it was initially proposed (48 Fed.Reg. 33211 (1983)) with the regulation as finally promulgated. Having done so, we are persuaded that the Department affirmatively rejected prospective relief" } ]

[ { "docid": "10159673", "title": "", "text": "and “serves as a benchmark internationally for employing effective seabird mitigation techniques and serves as an example of responsible conservation practices by a fishery.” The FWS also noted that “[closure of this fishery would likely result in replaced effort by foreign longline fleets to supply swordfish demand, where use. of bycatch mitigation methods would not likely follow international best practices.” We conclude that the FWS’s decision to issue a special purpose permit to the NMFS oh behalf of a commercial fishery was arbitrary and capricious. Although the FWS’s interpretation of § 21.27 would ordinarily deserve deference, see' Mead, 533 U.S. at 226-27, 121 S.Ct. 2164, we cannot conclude that such deference is appropriate in this case. Deference to the FWS’s interpretation is not warranted because the plain languagé of this regulation is not reasonably susceptible to the FWS’s new interpretation. The other “standard form permits” the MBTA regulations authorize govern discrete types of takings, such as scientific collecting, taxidermy, and rehabilitation, and although ■§ 21.27 is intended to allow the FWS to authorize activities not otherwise permitted by the regulations, it is still a narrow exception to the MBTA’s general prohibition on killing migratory birds. See Marsh, 869 F.3d at 1116-17 (“[W]e must always ensure that the interpretation is not inconsistent-with a congressional directive .... ”); Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1092 (9th Cir. 2013) (“[W]e must interpret [a] regulation as a whole, in light of the overall statutory and regulatory scheme ...(internal quotation marks omitted)). The FWS’s construction of § 21.27’s “special purpose activit[y]” exception as applying to basic commercial activities like fishing that have no articula-ble “special purpose” is therefore inconsistent with the existing permitting scheme that the FWS has enacted. The FWS must read the “special purpose’,’ provision in the context of the regulation’s other requirements that, taken together, fail to turn § 21.27 into a general incidental take exception: the permit must “relate[] to migratory birds” and may issue only upon a “sufficient showing of ... [a] compelling justification.” 50 C.F.R. § 21.27. The FWS unpersuasively argues that the phrase “related to" }, { "docid": "7643649", "title": "", "text": "the preliminary injunction denial become law of the case. We thus proceed to the merits of Appellants’ claims. IV. Appellants’ chief contention is that the Arizona 1 Mine’s 1988 plan of operations became “ineffective” after the mine closed in the early 1990s, thereby necessitating BLM approval of a new plan of operations before mining could recommence in 2009. In support of their contention that the cessation of mining activities rendered the 1988 plan of operations ineffective, Appellants rely on 43 C.F.R. § 3809.423, which provides that an operator’s “plan of operations remains in effect as long as [the operator is] conducting operations, unless BLM suspends or revokes [the] plan of operations.” Under Appellants’ reading of this regulation, because Energy Fuels stopped “conducting operations,” BLM had to approve a new plan of operations before Denison could resume mining at the Arizona 1 Mine. Appellants thus conclude that BLM violated 43 C.F.R. § 3809.11 by allowing Denison to mine without having an effective plan- of operations and that BLM thereby failed to comply with its duty under the FLPMA to ensure that the Arizona 1 Mine does not cause “unnecessary or undue deg radation.” 43 U.S.C. § 1732(b); see also 43 C.F.R. § 3809.1. When viewed in isolation, section 3809.423 appears to have rendered the 1988 plan of operations ineffective by reason of Energy Fuels’ cessation of activities in 1992. Nevertheless, we agree with the district court that we must “interpret [a] regulation as a whole, in light of the overall statutory and regulatory scheme, and not [] give force to one phrase in isolation.” Norfolk Energy, Inc. v. Hodel, 898 F.2d 1435, 1442 (9th Cir.1990) (internal quotation marks omitted); see also Alaska Trojan P’ship v. Gutierrez, 425 F.3d 620, 628 (9th Cir.2005). Upon reading the regulations as a whole, it is clear, as BLM contends, that section 3809.423 does not mean that a temporary closure of a mine immediately results in an ineffective plan of operations. To begin, the section 3809 regulations expressly provide for periods of temporary cessation of mining activities. Each mining plan of operations must contain a portion" }, { "docid": "9278306", "title": "", "text": "must on their own determine whether the nature or context of the agency's construction reverses the usual presumption of deference. Most notably, a court must consider whether the interpretation is authoritative, expertise-based, considered, and fair to regulated parties. All of that figures as \"meaningful judicial review.\" Brief for Petitioner 29. And even when a court defers to a regulatory reading, it acts consistently with Section 706. That provision does not specify the standard of review a court should use in \"determin[ing] the meaning\" of an ambiguous rule. 5 U.S.C. § 706. One possibility, as Kisor says, is to review the issue de novo . But another is to review the agency's reading for reasonableness. To see the point, assume that a regulatory (say, an employment) statute expressly instructed courts to apply Auer deference when reviewing an agency's interpretations of its ambiguous rules. Nothing in that statute would conflict with Section 706. Instead, the employment law would simply make clear how a court is to \"determine the meaning\" of such a rule-by deferring to an agency's reasonable reading. Ibid . Of course, that is not the world we know: Most substantive statutes do not say anything about Auer deference, one way or the other. But for all the reasons spelled out above, we have long presumed (subject always to rebuttal) that the Congress delegating regulatory authority to an agency intends as well to give that agency considerable latitude to construe its ambiguous rules. See supra, at 2411 - 2414. And that presumption operates just like the hypothesized statute above. Because of it, once again, courts do not violate Section 706 by applying Auer. To the contrary, they fulfill their duty to \"determine the meaning\" of a rule precisely by deferring to the agency's reasonable reading. See Sunstein & Vermeule, The Unbearable Rightness of Auer , 84 U. Chi. L. Rev. 297, 306 (2017) (If Congress intends \"that the meaning of a regulation turns on the agency's interpretation of its meaning,\" then courts comply with Section 706 's command to \" 'determine the meaning' [of the regulation] by deferring to that view\");" }, { "docid": "10159674", "title": "", "text": "otherwise permitted by the regulations, it is still a narrow exception to the MBTA’s general prohibition on killing migratory birds. See Marsh, 869 F.3d at 1116-17 (“[W]e must always ensure that the interpretation is not inconsistent-with a congressional directive .... ”); Ctr. for Biological Diversity v. Salazar, 706 F.3d 1085, 1092 (9th Cir. 2013) (“[W]e must interpret [a] regulation as a whole, in light of the overall statutory and regulatory scheme ...(internal quotation marks omitted)). The FWS’s construction of § 21.27’s “special purpose activit[y]” exception as applying to basic commercial activities like fishing that have no articula-ble “special purpose” is therefore inconsistent with the existing permitting scheme that the FWS has enacted. The FWS must read the “special purpose’,’ provision in the context of the regulation’s other requirements that, taken together, fail to turn § 21.27 into a general incidental take exception: the permit must “relate[] to migratory birds” and may issue only upon a “sufficient showing of ... [a] compelling justification.” 50 C.F.R. § 21.27. The FWS unpersuasively argues that the phrase “related to migratory birds” is not a restriction on its permitting authority, but merely a description of what can be permitted. The FWS specifically maintains that longline fishing is “related to migratory birds” because it incidentally interacts with them. Although nothing in the regulation requires that the permitted activity directly concern migratory birds, it nevertheless strains reason to say that .every activity that risks killing migratory birds “relate[s] to” those birds. See 50 C.F.R. § 21.27. The FWS’s approach to the regulation renders the majority of its text superfluous. See Nat’l Ass’n of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 669, 127 S.Ct. 2518, 168 L.Ed.2d 467 (2007) (cautioning against reading an agency regulation in a way that renders part of it redundant). The FWS’s interpretation of § 21.27 as authorizing it to grant an incidental take permit to the NMFS does not conform to either the MBTA’s conservation intent or the plain language of the regulation. We therefore conclude that the FWS’s grant of a special purpose permit to the NMFS was arbitrary and" }, { "docid": "7162096", "title": "", "text": "the district court, which provided that plaintiffs would not call as witnesses any of the other plaintiffs whom defendants did not depose \"to in any way contradict anything that [Barranco] said” in his deposition, and that \"the people who by agreement don’t get deposed are not going to contradict something important said by one of the deposed plaintiffs.” Like the district court, we decline to consider those portions of plaintiffs’ declarations that conflict with Barranco's prior deposition testimony. See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir.2001) (\"[F]actual allegations that might otherwise defeat a motion for summary judgment will not be permitted to do so when they are made for the first time in the plaintiff's affidavit opposing summary judgment and that affidavit contradicts [his] own prior deposition tes- . timony.”). . Plaintiffs do not argue that the regulations are ambiguous or urge us to consider regulatory interpretations. We conclude that the regulations unambiguously exempt plaintiffs from the overtime pay requirements of the FLSA. Accordingly, we need not defer to the Secretary’s interpretations of those regulations. Nevertheless, as discussed below, those interpretations only bolster our conclusion. . The Fourth Circuit’s unpublished decision in Kessler v. Howard County, 972 F.2d 340 (Table), 1992 WL 204344 (4th Cir.1992), relied on by plaintiffs, is not to the contrary. In that case, the court stated that a unit must have at least some \"functional independence” to qualify as a customarily recognized department or subdivision. Id. at *4. Read in context, it is clear that the Fourth Circuit used the quoted phrase not to describe units’ performing distinct types of work, but rather to reference the units' having at least some degree of autonomy in their operation. See id. (requiring further inquiry by the district court into whether \"sections operate independently of one another and the importance of the sections’ independent functions”). There appears to be no dispute that the teams at issue here have such autonomy. . See also Maestas v. Day & Zimmerman, LLC, Civ. No. 09-019, 2010 WL 5625914, at *9 (D.N.M. Nov. 30, 2010) (eight-hour shifts of security guards constituted" }, { "docid": "16522229", "title": "", "text": "minimum road system before the Subpart B designation of roads for public use. This claim turns primarily on a question of regulatory interpretation. The Ninth Circuit has held that an agency’s interpretation of the agency’s own regulation is ordinarily controlling, such that courts will defer to the agency interpretation “unless an alternative reading is compelled by the regulation’s plain language or by other indications of the agency’s intent at the time of the regulation’s promulgation.” Bassiri v. Xerox Corp., 463 F.3d 927, 930-31 (9th Cir.2006) (citing Auer v. Robbins, 519 U.S. 452, 461-63, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997)). This raises the question of what counts as an agency interpretation. In this case, many of the purported “interpretations” cited by defendants are not of the types that have previously received Auer deference. Nonetheless, as the court explains below, the Forest Service Manual suggests that the Forest Service may address Subparts A and B in any order, and plaintiffs have not shown that the language of the Travel Management Rule “compels” plaintiffs’ interpretation. It follows that the Forest Service’s decision not to first complete the Subpart A analysis was neither arbitrary nor in violation of the procedures required by law. 1. The Travel Management Rule Is Ambiguous The Ninth Circuit has articulated two different frameworks for regulatory interpretation. Bassiri used a two-step process, beginning with the agency interpretation and then looking to whether an alternative interpretation was “compelled.” Other courts begin with the plain language, looking to agency interpretation only if the regulation is ambiguous, and then looking to whether the interpretation is unreasonable. See, e.g., Bayview Hunters Point Cmty. Advocates v. Metro. Transp. Comm’n, 366 F.3d 692, 698 (9th Cir.2004); Hells Canyon Alliance v. U.S. Forest Serv., 227 F.3d 1170, 1180 (9th Cir.2000). These two frameworks are presumably equivalent. Here, the court concludes that the Travel Management Rule is ambiguous, because no language in the rule specifically addresses the timing of the Forest Service’s obligations under Subparts A and B. Plaintiffs’ contention that the structure of the rule compels plaintiffs’ interpretation is better discussed through the prism of reasonableness." }, { "docid": "22927925", "title": "", "text": "adjustment of status and foreclosing the possibility of reinstatement proceedings. 3. Conclusion The INS legally erred by denying Perez-Gonzalez’s application for adjustment of status on the ground that it was barred by the reinstatement provision, because he had applied for permission to reapply before his prior deportation order was reinstated. Furthermore, the INS legally erred when it denied his application for permission to reapply on grounds that run counter to the clear terms of the regulations and its own administrative precedent. The statutory framework clearly contemplates certain circumstances in which aliens who have been previously removed may still receive a favorable determination on their application for adjustment of status. The statutory provisions in § 241(a)(5), § 245(i), and § 212(a) should be read to harmonize with one another, rather than allowing § 241(a)(5) to render the other provisions totally or partially meaningless. See Ariz. Cattle Growers’ Ass’n v. U.S. Fish and Wildlife, 273 F.3d 1229, 1241 (9th Cir.2001) (“It is a fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme. A court must therefore interpret the statute as a symmetrical and coherent regulatory scheme and fit, if possible, all parts into an harmonious whole.”) (internal citations and quotation marks omitted). Accordingly, because we find that Perez-Gonzalez meets the requirements for receiving nunc pro tunc permission to reapply, we remand to the USCIS for a discretionary determination on appropriate legal grounds. If the agency chooses to exercise its discretion in his favor on both the Form 1-212 and § 212(i) relief, he will be eligible for adjustment of status. C. Due Process and the Reinstatement Provision Perez-Gonzalez argues that the regulations implementing the reinstatement provision violated his due process rights. He alleges that he was called to the local INS office for what he thought was an interview regarding his application for adjustment of status, and yet when he arrived he was immediately arrested, notified of the reinstatement of his prior deportation order, and prevented from consulting with his attorney. The" }, { "docid": "7112720", "title": "", "text": "protect the “waters of the United States.” Given that the term “navigable waters” is to be applied broadly under the CWA, see Riverside Bayview, 474 U.S. at 133, 106 S.Ct. at 462 (“Congress chose to define the waters covered by the [CWA] broadly.”); Leslie Salt Co. v. Froehlke, 578 F.2d 742, 754-55 (9th Cir. 1978) (“This court has indicated that the term ‘navigable waters’ within the meaning of the [CWA] is to be given the broadest possible constitutional interpretation[.]”); accord U.S. v. Byrd, 609 F.2d 1204, 1209 (7th Cir. 1979); TGR Corp., 171 F.3d at 764; Lambert, 695 F.2d at 538; U.S. v. Ashland Oil & Transp. Co., 504 F.2d 1317, 1323-24 (6th Cir. 1974), it makes little sense to interpret the term “navigable waters” broadly while enforcing a narrow interpretation of “adjoining shorelines.” See Slaven v. BP America, Inc., 973 F.2d 1468, 1472 (9th Cir. 1992) (“The difficulty with [defendant’s] position is that it asks this court to apply one reading of a particular subsection in isolation from the rest of the statute. As a tenet of statutory construction, however, the plain language rule does not examine statutory words in a vacuum. Rather, courts must consider a statutory provision’s phraseology in light of the overall structure and purpose of the legislation.”). Such a result would render the CWA incoherent by protecting tributaries that are not traditionally navigable waters under 38 C.F.R. § 328.3(a)(1) while arbitrarily not affording the land bordering such tributaries the same protection. See Royal Foods Co., Inc. v. RJR Holdings Inc., 252 F.3d 1102, 1108 (9th Cir. 2001) (a court must look beyond plain language if such a literal interpretation leads to an absurd result thwarting the purpose of the overall statutory scheme). “A court must [ ] interpret the statute as a symmetrical and coherent regulatory scheme, and fit, if possible, all parts into an harmonious whole[.]” Brown & Williamson, 529 U.S. at 133, 120 S.Ct. at 1301 (citations and internal quotation marks omitted). In short, having considered the plain language, structure and purpose of the CWA, see Real Prop., 545 F.3d at 1143 (“Where" }, { "docid": "21716362", "title": "", "text": "ridership increase.” Id. at 209-10. That program is not what was provided for in TCM 2. A requirement that MTC attain a 15% increase in ridership, no matter how and without regard to the cost, can be inferred from TCM 2 only by disregarding parts of TCM 2 itself. That measure was not a blank check on MTC’s account and cannot properly be read that way. C. Enforceable SIP Strategies and Unenforceable SIP Goals In giving effect to TCM 2’s provisions outlining its productivity improvements strategy, we recognize the well-established rule that courts may only enforce specific SIP strategies, and may not enforce a SIP’s overall objectives or aspirational goals. See, e.g., Trustees for Alaska v. Fink, 17 F.3d 1209, 1212 (9th Cir.1994) (noting that TCMs in a SIP must be “submitted to the EPA in an enforceable form” and that a SIP is “not enforceable apart from specific TCM strategies”) (citations omitted); Action for Rational Transit v. West Side Highway, 699 F.2d 614, 616 (2nd Cir.1983) (“aims and goals of the SIP are not enforceable apart from the specific measures designed to achieve them”). TCM 2 clearly designated implementation of the productivity improvements outlined in the transit operators’ five year plans as a specific SIP strategy to increase ridership, where ridership increases serve as a proxy for emissions reductions. Accordingly, the 15% target was an unenforceable estimate or goal that was directly correlative to the general objectives that inhere in attainment of the NAAQS. This is further supported by reading TCM 2 against the backdrop of TCM 1, which “reaffirms” a measure from the 1979 Air Quality Plan that was intended to improve transit service and increase ridership. See Campesinos Unidos v. U.S. Dep’t of Labor, 803 F.2d 1063, 1069 (9th Cir.1986) (“[0]ur task is to interpret the regulation as a whole, in light of the overall statutory and regulatory scheme, and not to give force to one phrase in isolation.”). TCM 2 stated that it was “basically an extension of TCM 1.” According to the text of TCM 1, the provision “reaffirms the commitment to the 1979 strategy,”" }, { "docid": "7112711", "title": "", "text": "the overall statutory scheme. Particular phrases must be construed in light of the overall purpose and structure of the whole statutory scheme.” I.R. ex rel. E.N. v. Los Angeles Unified Sch. Dist., 805 F.3d 1164, 1167 (9th Cir. 2015) (internal quotation marks and citations omitted; alterations in original); see Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (In addition to the language itself, “[t]he plainness or ambiguity of statutory language is determined by reference to the ... the specific context in which that language is used, and the broader context of the statute as a whole.”)- A review of the entire statutory scheme is especially important for a complex regulatory statute such as the CWA. See, e.g., San Luis & Delta-Mendota Water Auth. v. U.S., 672 F.3d 676, 685 (9th Cir. 2012) (describing the CWA as a complex statutory and regulatory scheme); Chubb Custom Ins. Co. v. Space Systems/Loral, Inc., 710 F.3d 946, 958 (9th Cir. 2013), cert. denied, — U.S. -, 134 S.Ct. 906, 187 L.Ed.2d 833 (2014) (characterizing CERCLA as a “web of sections, subsections, definitions, exceptions, defenses, and administrative provisions”) (internal alterations and quotation marks omitted). A court is, “however, cautioned against following a literal interpretation of a statute that would thwart the overall statutory scheme or lead to an absurd result.” Chubb, 710 F.3d at 958. A court should “not [be] guided by a single sentence or member of a sentence, but look to the provisions of the whole law, and to its object and policy.” Dole v. United Steelworkers of Am., 494 U.S. 26, 35, 110 S.Ct. 929, 934, 108 L.Ed.2d 23 (1990) (internal quotation marks omitted); see FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 1300-01, 146 L.Ed.2d 121 (2000) (A court must recognize that “[t]he meaning—or ambiguity— of certain words or phrases may only become evident when placed in context.”). In addition, a court “should be cautious of relying too heavily on dictionary definitions ... because rigid adherence to such definitions may result in an interpretation that conflicts" }, { "docid": "23395676", "title": "", "text": "by a federal court. We proffer, but do not hold, as that issue is not before us, that such a result may be mitigated by the doctrine of equitable tolling, as other circuits have applied that doctrine to the administrative exhaustion requirement for prison condition suits under 42 U.S.C. § 1997e(a). See, e.g., Clifford v. Gibbs, 298 F.3d 328, 332-33 (5th Cir.2002). . Given our resolution of the case, we do not find it necessary to analyze the substantive viability of Napier’s constitutional claim. PROPST, District Judge, dissenting: I respectfully dissent. I realize that the precise language of the pertinent statute may arguably call for the majority decision. And, as the majority states, the unambiguous language of a statute is entitled to “overriding deference.” However, the majority discusses two possible interpretations of the phrase “in custody.” It is axiomatic that these two possible interpretations make the term “in custody” ambiguous. Given this ambiguity, I cannot understand why, as the majority suggests, the term in question should be construed “without reference to the other parts of the statute” or legislative history, where there is an obvious statutory scheme. As the Supreme Court has recently observed: In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning — or ambiguity — of certain words or phrases may only become evident when placed in context.... It is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” ... A court must therefore interpret the statute “as a symmetrical and coherent regulatory scheme,” • ... and “fit, if possible, all parts into an harmonious whole.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (citations omitted). After looking at the statute as a whole, I believe that Congress intended “in custody” to mean, if not prison custody related to the present incarceration, at least prison custody. Section 1997e" }, { "docid": "7643650", "title": "", "text": "the FLPMA to ensure that the Arizona 1 Mine does not cause “unnecessary or undue deg radation.” 43 U.S.C. § 1732(b); see also 43 C.F.R. § 3809.1. When viewed in isolation, section 3809.423 appears to have rendered the 1988 plan of operations ineffective by reason of Energy Fuels’ cessation of activities in 1992. Nevertheless, we agree with the district court that we must “interpret [a] regulation as a whole, in light of the overall statutory and regulatory scheme, and not [] give force to one phrase in isolation.” Norfolk Energy, Inc. v. Hodel, 898 F.2d 1435, 1442 (9th Cir.1990) (internal quotation marks omitted); see also Alaska Trojan P’ship v. Gutierrez, 425 F.3d 620, 628 (9th Cir.2005). Upon reading the regulations as a whole, it is clear, as BLM contends, that section 3809.423 does not mean that a temporary closure of a mine immediately results in an ineffective plan of operations. To begin, the section 3809 regulations expressly provide for periods of temporary cessation of mining activities. Each mining plan of operations must contain a portion outlining an “interim management plan” that governs during “periods of temporary closure.” 43 C.F.R. § 3809.401(b)(5). Section 3809.424(a)(1) provides that if a mine operator “stop[s] conducting operations for any period of time” it must “follow [the] approved interim management plan.” As the district court explained, provisions requiring that an interim management plan govern during periods of temporary closure would be superfluous if a plan of operations was rendered ineffective as soon as mining operations ceased. Additionally, section 3809.424(a)(3) provides that after five years of inactivity, “BLM will review [the] operations and determine whether BLM should terminate [the] plan of operations and direct final reclamation and closure.” Likewise, section 3809.424(a)(4), provides that BLM may determine that an operator has abandoned mining operations and initiate forfeiture of reclamation costs. These mechanisms, by which BLM can terminate a plan of operations after five years of inactivity or after abandonment, would be meaningless if a plan of operations automatically became ineffective upon temporary cessation of mining activities. We agree with the district court that “[t]he obvious import of these" }, { "docid": "1455422", "title": "", "text": "We begin by noting that the rule of lenity “requires courts to limit the reach of criminal statutes to the clear import of their text and construe any ambiguity against the government.” United States v. Romm, 455 F.3d 990, 1001 (9th Cir.2006); see also United States v. Miranda-Lopez, 532 F.3d 1034, 1040 (9th Cir.2008). The rule of lenity applies “only where ‘after seizing every thing from which aid can be derived, the Court is left with an ambiguous statute.’ ” United States v. Nader, 542 F.3d 713, 721 (9th Cir.2008) (quoting Smith v. United States, 508 U.S. 223, 239, 113 S.Ct. 2050, 124 L.Ed.2d 138 (1993)). In such a case, fundamental principles of due process mandate that “no individual be forced to speculate, at peril of indictment, whether his conduct is prohibited.” Nader, 542 F.3d at 721 (citation and internal quotation marks omitted). We next turn to the language of the regulation. When construing a word, we generally construe the term in accordance with its “ ‘ordinary, contemporary, common meaning.’ ” Cleveland v. City of L.A., 420 F.3d 981, 989 (9th Cir.2005) (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th Cir.2004)). To that end, we may consider a dictionary definition. See id.; see also Mac’s Shell Serv., Inc. v. Shell Oil Prods. Co., — U.S. -, 130 S.Ct. 1251, 1258, 176 L.Ed.2d 36 (2010) (using dictionary definitions to inform statutory construction of words). Webster defines “garbage” as “food waste” or “discarded or useless material.” Webster’s Collegiate Dictionary 480 (10th ed. 1996). “Discard,” in turn is defined as “1: to get rid of, esp. as useless or unpleasant.” Id. at 330. Applying those definitions in the present context, the text of § 27.94(a) is ambiguous as to whether purified water in a sealed bottle intended for human consumption meets the definition of “garbage.” , A second fundamental canon of construction is that words must be read in their context, with a view to their place in the overall regulatory scheme, and to “ ‘fit, if possible, all parts into an harmonious whole.’ ” FDA" }, { "docid": "22697293", "title": "", "text": "— or ambiguity — of certain words or phrases may only become evident when placed in context. See Brown v. Gardner, 513 U. S. 115, 118 (1994) (“Ambiguity is a creature not of definitional possibilities but of statutory context”). It is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989). A court must therefore interpret the statute “as a symmetrical and coherent regulatory scheme,” Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995), and “fit, if possible, all parts into an harmonious whole,” FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389 (1959). Similarly, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand. See United States v. Estate of Romani, 523 U. S. 517, 530-531 (1998); United States v. Fausto, 484 U. S. 439, 453 (1988). In addition, we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency. Cf. MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U. S. 218, 231 (1994). principles in mind, we find that Congress has directly spoken to the issue here and precluded the FDA’s jurisdiction to regulate tobacco products. A Viewing the FDCA as a whole, it is evident that one of the Act’s core objectives is to ensure that any product regulated by the FDA is “safe” and “effective” for its intended use. See 21 U. S. C. § 393(b)(2) (1994 ed., Supp. Ill) (defining the FDA’s mission); More Information for Better Patient Care: Hearing before the Senate Committee on Labor and Human Resources, 104th Cong., 2d Sess., 83 (1996) (statement of FDA Deputy Comm’r Schultz) (“A fundamental precept of drug and device regulation in this country is that these products must be proven safe and" }, { "docid": "10159732", "title": "", "text": "§ 21.27 permittee to implement the same types of conservation measures that are codified under the ESA. FWS effectively did just that with the shallow-set fishery here. Because the fishery incorporates conservation measures that have dramatically reduced seabird bycatch, FWS’s issuance of the Permit is consistent with its rationale for covering migratory birds under ESA § 10. . See Klem v. County of Santa Clara, 208 F.3d 1085, 1092 (9th Cir. 2000) (‘‘the question ... is whether the Secretary’s • interpretation is justified when considered together with the text of [the regulation], taken in context”); cf. FDA v. Brown & Williamson Tobacco Corp,, 529 U.S. 120, 133, 120 S.Ct, 1291, 146 L.Ed.2d 121 (2000) (noting the \"fundamental canon . of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme” (internal quotation marks omitted)). . CBD asserts that an \"ongoing fishing business ... has no ‘special purpose' beyond catching fish.” But this observation,only begs the question; what is a \"special purpose”? CBD offers no explanation, except to march out a parade of horribles, warning that if the Permit is allowed to stand then the court will have ushered in a brave new world in which “every activity that happens to somehow harm birds” will qualify for an incidental take permit. . The majority correctly adheres to the doctrine that \"all the words used in a list should be read together and given related meaning when construing a statute or regulation.” Aguayo v. U.S. Bank, 653 F.3d 912, 927 (9th Cir. 2011). . To be sure, the quoted phrase applies only to captive-bred birds. But the point is that the regulation expressly contemplates issuing special purpose permits for something other than conserving migratory birds. . See Humane Soc'y of U.S. v. Watt, 551 F.Supp. 1310, 1319 (D.D.C. 1982), aff'd, 713 F.2d 865 (D.C. Cir. 1983) (‘“The United States ... [and] Great Britain ..., being desirous of saving from indiscriminate slaughter and insuring the preservation of such migratory birds as are either useful to men or" }, { "docid": "19592988", "title": "", "text": "regulation \"is a reasonable choice within a gap left open by Congress, the challenge must fail.\" Chevron , 467 U.S. at 866, 104 S.Ct. 2778. B. Our inquiry, however, does not end with the dual jobs regulation. For Marsh to state a claim under the FLSA, we must also conclude that the Guidance-which establishes the 20% related duties benchmark and separates occupations by duties-is entitled to judicial deference under either Auer v. Robbins , 519 U.S. 452, 117 S.Ct. 905, 137 L.Ed.2d 79 (1997), or Skidmore v. Swift & Co. , 323 U.S. 134, 65 S.Ct. 161, 89 L.Ed. 124 (1944). See Indep. Training & Apprenticeship Program v. Cal. Dep't of Indus. Relations , 730 F.3d 1024, 1035 (9th Cir. 2013). Because the dual jobs regulation is ambiguous and the Guidance's interpretation is both reasonable and consistent with the regulation, we agree with the Eighth Circuit that the Guidance is entitled to Auer deference. See Fast , 638 F.3d at 880-81. 1. \"[W]here an agency interprets its own regulation, even if through an informal process, its interpretation of an ambiguous regulation is controlling under Auer unless 'plainly erroneous or inconsistent with the regulation.' \" Bassiri v. Xerox Corp. , 463 F.3d 927, 930 (9th Cir. 2006) (quoting Auer , 519 U.S. at 461, 117 S.Ct. 905 ). \"Under this standard, we defer to the agency's interpretation of its [ambiguous] regulation unless an 'alternative reading is compelled by the regulation's plain language or by other indications of the [agency's] intent at the time of the regulation's promulgation.' \" Id. at 931 (emphasis and second alteration in original) (quoting Thomas Jefferson Univ. v. Shalala , 512 U.S. 504, 512, 114 S.Ct. 2381, 129 L.Ed.2d 405 (1994) ). Interpretations that \"do[ ] not reflect the agency's fair and considered judgment of the matter in question\" or unfairly surprise regulated parties are not entitled to Auer deference. Christopher v. SmithKline , 567 U.S. 142, 155-56, 132 S.Ct. 2156, 183 L.Ed.2d 153 (2012) (quoting Auer , 519 U.S. at 462, 117 S.Ct. 905 ). [S] We agree with Marsh that the dual jobs regulation is" }, { "docid": "8584835", "title": "", "text": "of appeal should invite full review of all aspects of the underlying administrative determination, she could easily have reserved this right and expressed her intention in the regulation, thereby warning applicants of the risk they take when seeking review. In the absence of such an articulation, it would be improper for us to construe the regulation to mean what the Secretary might have intended but did not adequately express. Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1117 (10th Cir.1977). “In fairness to the regulated, the provisions of the regulations should not be deemed to include what the administrator, exercising his delegated power, might have covered but did not cover.” Tobin v. Edward S. Wagner Co., 187 F.2d 977, 979 (2d Cir.1951). Additionally, statutes and regulations should be read and construed as a whole and, wherever possible, given a harmonious, comprehensive meaning. See Weinberger v. Hynson, Westcott and Dunning, 412 U.S. 609, 631-632, 93 S.Ct. 2469, 2484, 37 L.Ed.2d 207 (1973); United States v. Stauffer Chemical Co., 684 F.2d 1174, 1184 (6th Cir.1982); Ashcroft v. United States Dept. of Interior, 513 F.Supp. 595, 598 (D.Ariz.1981). We therefore look to and find support in the Secretary’s overall regulatory scheme. We note that if the court were to accept the Secretary’s view, the 60-day limit imposed on her right to appeal would be rendered meaningless in cases such as this. Similarly, the Secretary’s right to initiate termination proceedings would become an extraneous appendage. Our reading of the regulations avoids these results while giving force and effect to all provisions and preserving the general regulatory design. Finally, the Secretary is still not without recourse should she conclude, even after 60 days, that an error has been committed at a lower administrative level. As mentioned above, the regulations authorize the Secretary to institute procedures for the suspension or termination of benefits in certain situations and impose no time limitations on such action. See, e.g., 20 C.F.R. § 416.-1321 et seq. Therefore we hold that where a claimant makes timely application pursuant to 20 C.F.R. § 404.967 for review of a limited issue, such as" }, { "docid": "6810799", "title": "", "text": "‘intended to affect’ within the meaning of the [Act] absent manufacturer claims as to that product’s use.” Coyne Beahm, 966 F.Supp. at 1390. Even the FDA does not contend that tobacco manufacturers make any such claims. Coyne Beahm, 966 F.Supp. at 1389 n. 14. Even if we were to accept the FDA’s position that no other inquiry is permissible if tobacco products fall within the literal definition of drug or device, the jurisdictional inquiry would not end there. Both the FDA and the district court failed to examine the literal definitions in view of the language and structure of the Act as a whole. Such holistic approach to statutory construction is well-supported by the case law. See, e.g., Robinson, 519 U.S. 337, 117 S.Ct. 843, 136 L.Ed.2d 808 (stating that statutory language must be examined by “reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole”); Gustafson v. Alloyd Co., 513 U.S. 561, 570, 115 S.Ct. 1061, 131 L.Ed.2d 1 (1995) (instructing that acts of Congress “should not be read as a series of unrelated and isolated provisions”); United States Nat’l Bank, 508 U.S. at 455, 113 S.Ct. 2173 (quoting United Savings Ass’n of Texas v. Timbers of Inwood Forest Assoc., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988)) (explaining that statutory interpretation is a “holistic endeavor” that must include, at a minimum, an examination of the statute’s full text, its structure, and the subject matter). Accordingly, our task is to examine whether tobacco products fit into the overall regulatory scheme created by Congress. According to FDA Deputy Commissioner Schultz, “[a] fundamental precept of drug and device regulation in this country is that these products must be proven safe and effective before they can be sold.” Statement by FDA Deputy Commissioner William B. Schultz before the Senate Comm. on Labor and Human Resources, 104th Cong., p. 8 (Feb. 22, 1996). In fact, the FDA’s congressionally-established mission statement provides that the FDA is charged with protecting the public health by ensuring that human" }, { "docid": "7112710", "title": "", "text": "“resort to maxims of statutory construction such as noscitur a sociis or ejusdem generis[.]” (See Dkt. 92-1, Motion at 35). According to defendant, it would be illogical to conclude that the term “adjoining shorelines” includes the edges of “ephemeral, unnamed ‘tributaries’ ” such as Palmer Road Creek, Cat Canyon Creek, and Spring Canyon Creek, because “[s]uch surface features are ubiquitous on the land within the United States ... in virtually every field, meadow, hill, and mountain, as well as along most roads.” (Dkt. 92-1, Motion at 35). Further, defendant contends that the legislative history of the CWA makes it clear that Congress never intended for the phrase “adjoining shorelines” to include the edges of streams or tributaries. (See id. at 36-40). HVI’s contentions are unpersuasive. “When interpreting a statute, the court begins with the statutory text and interprets statutory terms in accordance with their ordinary meaning, unless the statute clearly expresses an intention to the contrary. [W]e must read the words [of a statute] in their context and with a view to their place in the overall statutory scheme. Particular phrases must be construed in light of the overall purpose and structure of the whole statutory scheme.” I.R. ex rel. E.N. v. Los Angeles Unified Sch. Dist., 805 F.3d 1164, 1167 (9th Cir. 2015) (internal quotation marks and citations omitted; alterations in original); see Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 846, 136 L.Ed.2d 808 (1997) (In addition to the language itself, “[t]he plainness or ambiguity of statutory language is determined by reference to the ... the specific context in which that language is used, and the broader context of the statute as a whole.”)- A review of the entire statutory scheme is especially important for a complex regulatory statute such as the CWA. See, e.g., San Luis & Delta-Mendota Water Auth. v. U.S., 672 F.3d 676, 685 (9th Cir. 2012) (describing the CWA as a complex statutory and regulatory scheme); Chubb Custom Ins. Co. v. Space Systems/Loral, Inc., 710 F.3d 946, 958 (9th Cir. 2013), cert. denied, — U.S. -, 134 S.Ct. 906, 187" }, { "docid": "22697292", "title": "", "text": "end; the court “must give effect to the unambiguously expressed intent of Congress.” Id., at 848; see also United States v. Haggar Apparel Co., 526 U. S. 380, 392 (1999); Holly Farms Corp. v. NLRB, 517 U. S. 392, 398 (1996). But if Congress has not specifically addressed the question, a reviewing court must respect the agency’s construction of the statute so long as it is permissible. See INS v. Aguirre-Aguirre, 526 U. S. 415, 424 (1999); Auer v. Robbins, 519 U. S. 452, 457 (1997). Such deference is justified because “[t]he responsibilities for assessing the wisdom of such policy choices and resolving the struggle between competing views of the public interest are not judicial ones,” Chevron, supra, at 866, and because of the agency’s greater familiarity with the ever-changing facts and circumstances surrounding the subjects regulated, see Rust v. Sullivan, 500 U. S. 173, 187 (1991). In determining whether Congress has specifically addressed the question at issue, a reviewing court should not confine itself to examining a particular statutory provision in isolation. The meaning — or ambiguity — of certain words or phrases may only become evident when placed in context. See Brown v. Gardner, 513 U. S. 115, 118 (1994) (“Ambiguity is a creature not of definitional possibilities but of statutory context”). It is a “fundamental canon of statutory construction that the words of a statute must be read in their context and with a view to their place in the overall statutory scheme.” Davis v. Michigan Dept. of Treasury, 489 U. S. 803, 809 (1989). A court must therefore interpret the statute “as a symmetrical and coherent regulatory scheme,” Gustafson v. Alloyd Co., 513 U. S. 561, 569 (1995), and “fit, if possible, all parts into an harmonious whole,” FTC v. Mandel Brothers, Inc., 359 U. S. 385, 389 (1959). Similarly, the meaning of one statute may be affected by other Acts, particularly where Congress has spoken subsequently and more specifically to the topic at hand. See United States v. Estate of Romani, 523 U. S. 517, 530-531 (1998); United States v. Fausto, 484 U. S. 439," } ]

[ { "docid": "1837615", "title": "", "text": "a word is that the court erred in submitting to the jury only one form of verdict for plaintiff in which the amount was fixed. The court instructed the jury that in the event of a verdict for plaintiff it should be in the sum of $18,791.69, representing in the aggregate the disability benefits which had accrued since March 21, 1939, and the premiums paid under protest ; and the form of the verdict submitted to the jury was for that amount. It is argued that the insured suffered prejudice because the jury was precluded from finding for him in a lesser amount. But the insured did not object or except to the instruction or the form of the verdict, and did not otherwise indicate to the trial court that either met with his disapproval. The general rule having application is that ordinary questions of this kind, not going to the jurisdiction of the court, and not raised or presented to the trial court by objection, exception, or in some other appropriate manner, will not be reviewed on appeal. National Fire Insurance Co. v. School District No. 68, 10 Cir., 115 F.2d 232. The judgment is affirmed. PHILLIPS, Circuit Judge. I concur in the result and with all of the opinion, except the following statement on page 3 [144 F.2d 678], “and shifted the burden to the company to go forward and show by a preponderance of the evidence that the condition no longer existed.” I think the sole effect of the evidence of the judgment in the former case was to create a presumption and cast upon the company the duty to come forward with evidence against the fact presumed sufficient to take the case to the jury. It is my view that the burden of proof did not shift. Wigmore on Evidence, 2d Ed., Vol. 5, §§ 2485, 2487, 2489." } ]

[ { "docid": "22651181", "title": "", "text": "these evidentiary burdens. It, therefore, reversed the judgment of the District Court and remanded the case for computation of backpay. Because the decision of the Court of Appeals as to the burden of proof borne by the defendant conflicts with interpretations of our precedents adopted by other Courts of Appeals, we granted certiorari. 447 U. S. 920 (1980). We now vacate the Fifth Circuit’s decision and remand for application of the correct standard. II In McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), we set forth the basic allocation of burdens and order of presentation of proof in a Title VII case alleging discriminatory treatment. First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant “to articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” Id., at 802. Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination. Id., at 804. The nature of the burden that shifts to the defendant should be understood in light of the plaintiff’s ultimate and intermediate burdens. The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. See Board of Trustees of Keene State College v. Sweeney, 439 U. S. 24, 25, n. 2 (1978); id., at 29 (Stevens, J., dissenting). See generally 9 J. Wigmore, Evidence § 2489 (3d ed. 1940) (the burden of persuasion “never shifts”). The McDonnell Douglas division of intermediate evidentiary burdens serves to bring the litigants and the court expeditiously and fairly to this ultimate question. The burden of establishing a prima facie case of disparate treatment is not onerous. The plaintiff must prove by a proponderence of the evidence that she applied for an available position for which she was qualified, but was rejected" }, { "docid": "22270712", "title": "", "text": "his absence constituted evidence of participation in the strike. Proof of a wide-spread strike of general knowledge, together with proof of Schapansky’s absence without authorization or explanation during the strike, must in the practical world constitute at least a prima facie case of his participation in the strike. Once an agency has made a prima facie showing, the burden of going forward with evidence to rebut that showing necessarily shifts to the employee, who is in the best position to present explanatory evidence to counter that showing. The burden of proving the charge by preponderance of the evidence is and remains throughout upon the agency. The order of presentation, however, is allocated in such a way that each party is required to give evidence in the area in which it has the better access to information. It may be that little countering evidence would be required, where, for example, the prima facie case was minimally supported. We need not discuss that relationship here, however, for the prima facie case here was more than minimally supported and Schapansky submitted no evidence effective to counter it. The agency’s burden of proof respecting strike participation may be described as a burden of “persuasion”, because it has “in form the affirmative allegation” and must bear the burden of persuasion from start to finish. See, 9 J. Wigmore, Wigmore on Evidence 2486, 2489 (J. Chadbourn rev. ed. 1981). Schapansky points to language in the Board’s opinion in which it appeared to be placing a burden of persuasion on him. It is clear, however, from a reading of the challenged phrase in the context of the entire opinion that the Board in actuality placed a burden of production, not persuasion, on Schapansky following presentation of the agency’s prima facie case. The Board specifically stated that it required the agency to “ultimately establish” the employee’s participation in a strike. Thus the Board did not, as Schapansky asserts, craft some new approach for use in his case. Absent effective rebuttal, the agency must be held to have carried its burden of persuasion. Schapansky concedes that the agency demonstrated" }, { "docid": "15070697", "title": "", "text": "communication. * * * ” . It is clear that the trial court disregarded all of Herman Goldfarb’s testimony regarding conversations with Vocale. It is not entirely clear to what extent the court disregarded “transactions” which did not involve such conversations. It seems probable that in reserving a decision as to “other transactions that be testified to,” the court had reference to transactions other than those involving either conversations or transactions with Vocale. In any event, in view of our conclusion that other competent evidence is sufficient to sustain the court’s findings, appellants have failed to show prejudice, and any error would be harmless within the meaning of Rule 61 of the Federal Rules of Civil Procedure, 28 U. S.C.A. . This is dear from a comparison of the signatures of endorsement of the two cheeks with the signature on the application for loan. . While the “burden of proof” did not shift, when the appellee made a prima facie case of nonpayment, appellants had the burden of going forward with the evidence to rebut the prima facie case, at the risk of an adverse judgment upon their failure to do so. See 9 Wigmore on Evidence, 3d Ed.1940 §§ 2485, 2487, 2489 ; 31 C.J.S. Evidence § 110, p. 719; Commercial Molasses Corp. v. New York Barge Corp., 1941, 314 U.S. 104, 110-111, 62 S.Ct. 156, 86 L.Ed. 89; opinion below sub nom. Commercial Molasses Corp. v. New York Tank Barge Corp., 2 Cir., 1940, 114 F.2d 248, 251; Guinan v. Boston, Cape Cod & New York Canal Co., 2 Cir., 1924, 1 F.2d 239, 245. . Hook v. Pratt, 78 N.Y. 371, 34 Am.Rep. 539; Sona v. Handrulis, 277 N.Y. 223, 14 N.E.2d 46. . Comstock v. Hier, 73 N.Y. 269, 29 Am. Rep. 142; Soma v. Handrulis, supra. . Goodman v. Snow, 81 Hun 225, 30 N.Y.S. 672; Bank of California v. Webb, 94 N.Y. 467. . It would have been better practice for appellee to inquire into Goldfarb’s right to use the check before accepting it, but its failure to do so does not in itself" }, { "docid": "18870983", "title": "", "text": "and not to the burden of persuasion which “never shifts.” 450 U.S. at 253, 101 S.Ct. at 1093. Although this analytical mode has been particularly explored in Title VII cases, as Justice Powell recently reminded us, the “evidentiary relationship between the presumption created by a prima facie case and the consequential burden of production placed on the defendant is a traditional feature of the common law.” Texas Department of Community Affairs v. Burdine, 450 U.S. at 255 n.8, 101 S.Ct. at 1094 n.8. In the context of a motion for summary judgment (whether partial or full) “assessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided by the jury. In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Id. As Wigmore describes this aspect of the burden of proof, it is the “duty of producing evidence to the judge.” IX Wigmore on Evidence § 2487 (3d ed. 1940). “The treatment of the situation, and the operation of the rules, can best be comprehended by keeping this consideration in mind, namely, that the opportunity to decide finally upon the evidentiary material that may be offered does not fall to the jury as a matter of course; that each party must first with his evidence pass the gauntlet of the judge; ... [i]n short, in order to get to the jury on the issue, and bring into play the other burden of proof (in the sense of the risk of non-persuasion of the jury), both parties alike must first satisfy the judge that they have a quantity of evidence fit to be considered, by the jury, and to form a reasonable basis for the verdict.” Id. (emphasis in original). Because a plaintiff has the affirmative duty of proving each element of the cause of action, the burden of persuasion “never shifts” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 101" }, { "docid": "6335946", "title": "", "text": "either by a preponderance of evidence or evidence sufficient to establish equilibrium, has met and answered the prima facie case, then the burden of going forward with the evidence returns to the original proponent charged with the burden of proof who must in turn, by a preponderance or greater weight of evidence, overcome the equilibrium thus established, or otherwise support his burden of proof by a preponderance of the evidence. This is true whether the original prima facie case is founded upon affirmative evidence or established by the doctrine of res ipsa loquitur or other presumption or inference of law. Sweeney v. Erving, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815, Ann.Cas.l914D, 905. As said in Commercial Molasses Corporation v. New York Tank Barge Corporation, 314 U.S. 104, 111, 62 S.Ct. 156, 161, 86 L.Ed. 89, an inference or presumption “does no more than require the [defensive party,] if he would avoid the inference, to go forward with evidence sufficient to persuade that the nonexistence of the fact, which would otherwise be inferred, is as probable as its existence. It does not cause the burden of proof to shift, and if the [defensivo party] does go forward with evidence enough to raise doubts as to the validity of the inference, which the trier of facts is unable to resolve, the [proponent] does not sustain the burden of persuasion which upon the whole evidence remains upon him, where it rested at the start.” The court cited, inter alia, the opinion of Judge Woolley in Tomkins Cove Stone Co. v. Bleakley Transp. Co., 3 Cir., 40 F.2d 249. In support of the foregoing principles may be found many well-reasoned cases such as First National Bank of Morrill v. Ford, 30 Wyo. 110, 216 P. 691, 31 A.L.R. 1441, quoted in extenso in 2 Jones on Evidence, Sec. 482, p, 855, 856. From numerous cases showing the general principle there may be culled the cases cited in the footnote. Wigmore in his elaborate treatise shows the shifting and progressive nature of the burden of producing evidence for the satisfaction of the judge" }, { "docid": "13104329", "title": "", "text": "basic facts. The court may, however, instruct the jury that it may infer the existence of the presumed fact.from proof of the basic facts. There exist a number of decisions stating the principle that “fraud is never presumed.” See, e. g.. In re Brown, 6 Collier Bankruptcy Cases 679, 684 (E.D.Va.1975) (and the cases cited therein, most of which involve non-bankruptcy questions). Viewed in context, that “principle” has been used generally by courts in efforts to state that in cases in which fraud is an issue, the complaining party must prove such fraud by clear and convincing evidence and that whether or not fraud has occurred cannot be “left to mere speculation.” See, e. g., General Finance Corp. v. Fidelity and Casualty Co. of New York, 439 F.2d 981 (8th Cir. 1971). When these courts speak of “no presumption of fraud” in the standard of proof context, the word “presumption” is not to be taken in its literal sense, i. e., a rule “ ‘attaching to one evidentiary fact certain procedural consequences as to the duty of production of evidence by the opponent.’ ” Hecht and Pinzler, Rebutting Presumptions: Order Out of Chaos, 58 B.U.L.Rev. 527, 528 (1978), quoting 9 J. Wigmore, A Treatise on the Anglo-American System of Evidence in Trials at Common Law § 2491 at 288 (3d ed. 1940). What these courts are asserting, apparently, is this: that “fraud must be affirmatively established by clear and convincing proof of each and every essential element.” Mack v. Earle M. Jorgensen Co., 467 F.2d 1177, 1179 (7th Cir. 1972). This is entirely consistent with the use of a Rule 301 presumption in a § 17a(2) case, since the use of such a presumption operates, as outlined in this opinion, to shift the burden of going forward with evidence to the bankrupt in certain circumstances. The Rule 301 presumption never causes the shift of the plaintiff’s burden of persuasion. . However, the “bursting of the bubble” does not necessarily dilute the strength of the logical inferences which have arisen as a result of the plaintiff-creditor’s evidence. Hence, it is quite" }, { "docid": "1172136", "title": "", "text": "similar rationale: “The fact that a court may think that the employer [exhibited bad business judgment] does not in itself expose him to Title VII liability, although this may be probative of whether the employer’s reasons are pretexts for discrimination.” Burdine, 450 U.S. at 259, 101 S.Ct. at 1096. We find, therefore, that the instruction is an accurate statement of the law, and was properly before the jury. In its second challenge to the jury instructions, Sears devotes one paragraph of its brief to the argument that the court erred in refusing to give its Proposed Jury Instruction No. 4, which sets forth the burden of proof in a race discrimination case as adopted by the Supreme Court in Burdine and by the Michigan Court of Appeals in Clark v. Uniroyal Corp., 119 Mich.App. 820, 327 N.W.2d 372 (1982), and Jenkins v. Southeastern Michigan Chapter, American Bed Cross, 141 Mich.App. 785, 369 N.W.2d 223 (1985). Sears’ proposed instruction read, in part: “The burden of proof is at all times with the Plaintiff to establish that Sears intended to discriminate against the Plaintiff because of her race and that her race was one of the reasons which made a difference in her treatment.” (Emphasis supplied) (J.A. at 207). “Burden of proof” is an amorphous term, comprising both the “burden of production” and the “burden of persuasion.” See IX Wigmore on Evidence §§ 2485-89 (1981). McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973) provides the relevant framework for distributing burdens in a Title VII case. A three-step process allocates the shifting burdens of the production of evidence. “The burden of production rests first on the plaintiff to establish his prima facie case, then on the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection,” and finally again on the plaintiff to show that the defendant’s reasons are pretextual. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; see also Chappell v. GTE Products Corp., 803 F.2d 261, 265 (6th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1375, 94 L.Ed.2d" }, { "docid": "2641843", "title": "", "text": "defendant lacked mental capacity to form the requisite mem rea if, at the time of the commission of the crime, he was not able to distinguish right from wrong, act on that distinction or know the nature and the quality of his acts. Cf., the test of legal insanity in the District of Columbia, Durham v. United States, 1954, 94 U.S.App.D.C. 228, 214 F.2d 862, 45 A.L. R.2d 1430. In this case there is no issue of who has the burden of persuading the jury. IX Wigmore, Evidence, §§ 2488, 2489, 2497 (3 ed. 1940). The instructions to the jury as to the burden of proof were correct. Cf., Davis v. United States, 1895, 160 U.S. 469, 478, 484, 16 S.Ct. 353, 40 L.Ed. 499, which reversed on an instruction that if the evidence of sanity balanced that, of insanity, a verdict of guilty was justified. In the instructions in the instant ease the burden of proving appellant’s sanity: beyond a reasonable doubt was properly placed upon the Government, just as it has the burden of proving all other elements of the crime. McKenzie v. United States, 10 Cir., 1959, 266 F.2d 524, 527. But cf., state practice described in Leland v. Oregon, 1952, 343 U.S. 790, 798, 72 S.Ct. 1002, 96 L.Ed. 1302. The problem that faces us is to determine whether the trial court should have granted appellant’s motion for acquittal. This motion raises the issue of the sufficiency of the evidence the Government introduced bearing on appellant’s sanity. In this case, the Government introduced prima facie evidence of appellant’s guilt — his confession plus corroborating witnesses. At this point, there was a presumption of appellant’s sanity. The burden of offering evidence as to his insanity was then cast upon appellant; for, if no evidence of insanity was produced, it was not proper to submit that issue to the jury. Here, on the contrary, appellant introduced substantial evidence of his insanity. The issue of his capacity to commit the robbery became a question of proof. Upon the conclusion of appellant’s case, the Government readily concedes that the burden" }, { "docid": "22255641", "title": "", "text": "a matter of determining “burden of proof” has long been recognized as analytically unproductive, “[t]he distinction [between the two burdens] is now very generally accepted, although often confused by careless speech.” Hill v. Smith, 260 U.S. 592, 597, 43 S.Ct. 219, 220, 67 L.Ed. 419 (1923) (Holmes, J.). See Psaty v. United States, 442 F.2d 1154, 1159 (3d Cir. 1971). The burden of producing evidence, often termed the burden of going forward, is a duty owed to the trial judge to satisfy him that there is sufficient evidential material from which the jury could reasonably infer the existence of the fact to be proved. IX Wigmore on Evidence § 2487 at 278-79 (3d ed. 1940). Only after the initial burden of producing evidence (and it may shift to the other party) has been met, does the burden of ultimate persuasion arise. The party who bears that burden bears, in effect, a “risk of non-persuasion” for that party must persuade the fact-finder that the existence of a fact is more probable than its non-existence (in a civil case) or risk an adverse finding. C. McCormick, Law of Evidence § 339 (2d ed. 1972). Which party should bear these burdens is no easy question, for there is “no one principle, or set of harmonious principles, which afford a sure and universal test for the solution of a given class of cases.” IX Wigmore on Evidence § 2486 at 278. The problem is doubly difficult for this court to resolve, for neither the parties nor the district court have addressed themselves to a crucial aspect of it. However persuasive KLM’s presentation of legislative history may be, however cogent the reasoning of the cases plaintiff cites appears, neither are prime determinants in this case of where the twin burdens of producing evidence and persuasion lie. The question of which party bears the burden of proof in a diversity case ordinarily is a matter of substantive law within the meaning of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), and so is governed by state law. Palmer v." }, { "docid": "18870981", "title": "", "text": "defendant in an employment discrimination suit under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.” Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 249-50, 101 S.Ct. 1089, 1092, 67 L.Ed.2d 207 (1981). From Griggs v. Duke Power Company, 401 U.S. 424, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971), through McDonnell Douglas Corporation v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) to Teamsters v. United States, 431 U.S. 324, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977) to Texas Department of Community Affairs v. Burdine, supra, the essential issues have been discussed in terms of the allocation of various burdens of proof. The practice of addressing Title VII issues under the rubric of “burdens of proof” and “shifting burdens of proof” had led to some significant confusion. This confusion arose not because of some intrinsic difficulty in the mode of analysis but because these terms are instances of “lamentable ambiguity of phrase and confusion of terminology under which our law has [] long suffered.” IX Wigmore on Evidence 271 (3d ed. 1940). As Wigmore exhaustively points out, the phrase has at least two possible meanings depending upon the context used. Thus, the phrase “burden of proof” may refer to the burden of persuasion on an issue tendered to the ultimate trier of fact (see IX Wigmore, supra, § 2485), or it may refer to the duty of producing evidence to the judge sufficient to justify presentation of the issue to the trier of fact. Id. at § 2487 and see Texas Department of Community Affairs v. Burdine, 450 U.S. at 254 n.7, 101 S.Ct. at 1094 n.7. Because of this ambiguity, various courts had mistakenly thought that the process of shifting burdens of proof in the context of Title VII cases referred to the burden of persuasion rather than the burden of producing evidence. Recently the United States Supreme Court dispelled the confusion. In Burdine, supra, the Court made clear that the shifts in the burden of proof recognized in McDonnell Douglas, referred to the obligation of producing evidence" }, { "docid": "6335947", "title": "", "text": "as probable as its existence. It does not cause the burden of proof to shift, and if the [defensivo party] does go forward with evidence enough to raise doubts as to the validity of the inference, which the trier of facts is unable to resolve, the [proponent] does not sustain the burden of persuasion which upon the whole evidence remains upon him, where it rested at the start.” The court cited, inter alia, the opinion of Judge Woolley in Tomkins Cove Stone Co. v. Bleakley Transp. Co., 3 Cir., 40 F.2d 249. In support of the foregoing principles may be found many well-reasoned cases such as First National Bank of Morrill v. Ford, 30 Wyo. 110, 216 P. 691, 31 A.L.R. 1441, quoted in extenso in 2 Jones on Evidence, Sec. 482, p, 855, 856. From numerous cases showing the general principle there may be culled the cases cited in the footnote. Wigmore in his elaborate treatise shows the shifting and progressive nature of the burden of producing evidence for the satisfaction of the judge as well as the permanent and non-shifting nature of the burden of proof (the non-persuasion of the jury), which remains at all times with the proponent of the issue, to be established by a preponderance of the evidence. 9 Wig-more on Evidence, 3d Ed., Sec. 2485-2489. See also 2 Chamberlayne, Modern Law of Evidence, Sec. 940, etc.; McKelvey on Evidence, 75. In Board of Education v. Makely, 139 N.C. 31, 51 S.E. 784, and Shepard v. Western Union Telegraph Co., 143 N.C. 244, 55 S.E. 704, 118 Am.St.Rep. 796, is cited a terse and apt quotation from 1 Elliott on Evidence, as follows: “The burden of the issue, that is, the burden of proof, in the sense of ultimately proving or establishing the issue or case of the party upon which such burden rests, as distinguished from the burden or duty of going forward and producing evidence, never shifts, but the burden or duty of proceeding or going forward often does shift from one party to the other, and sometimes back again. Thus, when the" }, { "docid": "1172137", "title": "", "text": "Sears intended to discriminate against the Plaintiff because of her race and that her race was one of the reasons which made a difference in her treatment.” (Emphasis supplied) (J.A. at 207). “Burden of proof” is an amorphous term, comprising both the “burden of production” and the “burden of persuasion.” See IX Wigmore on Evidence §§ 2485-89 (1981). McDonnell Douglas Corp. v. Green, 411 U.S. 792, 800, 93 S.Ct. 1817, 1823, 36 L.Ed.2d 668 (1973) provides the relevant framework for distributing burdens in a Title VII case. A three-step process allocates the shifting burdens of the production of evidence. “The burden of production rests first on the plaintiff to establish his prima facie case, then on the defendant to articulate some legitimate, nondiscriminatory reason for the employee’s rejection,” and finally again on the plaintiff to show that the defendant’s reasons are pretextual. McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825; see also Chappell v. GTE Products Corp., 803 F.2d 261, 265 (6th Cir.1986), cert. denied, — U.S. -, 107 S.Ct. 1375, 94 L.Ed.2d 690 (1987). Thus, the burden of production is not forever on one party; rather, it is an evidentiary tool that shifts from one party to another. It is the burden of persuasion that rests at all times with the plaintiff. Chappell, 803 F.2d at 265. Defendant’s proposed instruction — stating that the burden of proof rests at all times with the plaintiff — is therefore an ambiguous and potentially confusing statement of the law. At trial, the given jury instruction on the burden of proof was taken directly from II Michigan Standard Jury Instructions 2d § 105.04: Plaintiff has the burden of proving that race was one of the motives cr reasons which made a difference in determining to discharge the plaintiff. Your verdict will be for the plaintiff if you find that race was one of the motives or reasons which made a difference in determining to discharge the plaintiff. Your verdict will be for the defendant if you find that race was not one of the motives or reasons which made a difference" }, { "docid": "8447794", "title": "", "text": "which matures the policy, the plaintiff establishes a prima facie case. The Topinka case is illustrative; see also 95 A.L.R. 755. The effect of such decision is to shift to the defendant insurer the burden of going forward with the evidence in rebuttal. In the instant case, the plaintiff has established that the contract was executed and that the insurance was granted; there is no question as to the date and the death of the insured. Consequently, even if the risk of non-persuasion were on the plaintiff, the defendant herein has the burden of going forward with the evidence. Since the defendant’s motion to dismiss is made under Rule 41(d), it has the opportunity of producing evidence, and neither hardship nor injustice results. In this connection it may be added that generally the burden of persuasion settles on the party on whom it rests more lightly. That party in this case is the defendant, for it is a simple matter to show, by the proper records, that payments of the premiums were not received. Such evidence would be effective. See Roseberry v. Home Life Ins. Co., supra, 120 Pa.Super. at page 456, 183 A. at page 124. The plaintiff, on the other hand, would meet with the very difficult task of establishing payments made by a person now deceased, and would be faced with defeat early in the trial because of the deceased’s failure to maintain records of payment. For the reasons stated the motion is dismissed, and an order may be entered accordingly. The term is here used to indicate the burden of persuasion. The distinction set forth in Rule 1, A.L.I. Model Code of Evidence, is well recognized. See also, 9 Wigmore, Evidence, 3d Ed. 1940, §§ 2485 and 2487. Commentators are agreed the burden of persuasion never shifts, although the burden of going forward with the evidence may shift during the course of trial. See 9 Wigmore, Evidence §§ 2485 and 2487. Therefore, although the defendant has the burden of persuasion, by adducing evidence of nonpayment, it can shift the burden of rebuttal to the plaintiff." }, { "docid": "6335948", "title": "", "text": "as well as the permanent and non-shifting nature of the burden of proof (the non-persuasion of the jury), which remains at all times with the proponent of the issue, to be established by a preponderance of the evidence. 9 Wig-more on Evidence, 3d Ed., Sec. 2485-2489. See also 2 Chamberlayne, Modern Law of Evidence, Sec. 940, etc.; McKelvey on Evidence, 75. In Board of Education v. Makely, 139 N.C. 31, 51 S.E. 784, and Shepard v. Western Union Telegraph Co., 143 N.C. 244, 55 S.E. 704, 118 Am.St.Rep. 796, is cited a terse and apt quotation from 1 Elliott on Evidence, as follows: “The burden of the issue, that is, the burden of proof, in the sense of ultimately proving or establishing the issue or case of the party upon which such burden rests, as distinguished from the burden or duty of going forward and producing evidence, never shifts, but the burden or duty of proceeding or going forward often does shift from one party to the other, and sometimes back again. Thus, when the actor has gone forward and made a prima facie case, the other party is compelled in turn to go forward or lose his case, and in this sense the burden shifts to him. So the burden of going forward may, as to some particular matter, shift again to the first party in response to the call of a prima facie case or presumption in favor of the second party. But the party who has- not the burden of the issue is not bound to disprove the actor’s case by a preponderance of the evidence, for the actor must fail if, upon the whole evidence, he does not have a preponderance, no matter whether it is because the weight of evidence is with the other party, or because the scales are equally balanced.” Because, in this case, the plaintiff did not sustain its burden toward the fact-finding tribunal and show the negligence of the defendants by a preponderance of the evidence, judgment must be entered for the defendants. On Motion for Reargument Subsequent to the filing" }, { "docid": "22535748", "title": "", "text": "in 1946, there is good evidence that the courts were still using the term either way and that Congress followed Thayer. Indeed, just nine years after Hill v. Smith, 260 U. S. 592 (1923), in which Justice Holmes is said to have firmed up the use of “burden of proof” to mean burden of persuasion, this Court reverted to using the phrase in its burden of production sense instead. See Heiner v. Donnan, 285 U. S. 312, 329 (1932) (“A rebuttable [prima facie] presumption clearly is a rule of evidence which has the effect, of shifting the burden of proof”) (citing Mobile, J. & K. C. R. Co. v. Turnipseed, 219 U. S. 35, 43 (1910) (stating that “[t]he only legal effect of this [presumption] is to cast upon [defendant] the duty of producing some evidence to the contrary”)). In such usage Heiner appears in line with Hawes v. Georgia, 258 U. S. 1 (1922) (upholding rebuttable presumption casting “burden of proof” on defendant in criminal case); see Tot v. United States, 319 U. S. 463, 470-471 (1943) (describing Hawes as involving statutory provision that permissibly “shift[ed] the burden of proof” once a prima facie case was made by prosecution). And courts just three years before the passage , of the APA held that burden of proof was at least sometimes used by Congress to mean “burden of going forward with the evidence,” and not burden of persuasion. Northwestern Elec. Co. v. Federal Power Comm’n, 134 F. 2d 740, 743 (C A9 1943) (interpreting “burden of proof” in Federal Power Act, 16 U. S. C. § 825(a)), aff'd, 321 U. S. 119 (1944). Contrary to the Court’s understanding, commentators did not think the ambiguity of the phrase had disappeared before passage of the APA, and, at the time, some even thought it unsettled whether burden of persuasion or of going forward with the evidence was the primary meaning of the phrase. As one commentator (relied on by the majority here) explained in 1938, although in its “strict primary sense, ‘burden of proof’ signifies” burden of persuasion, “[i]n its secondary sense," }, { "docid": "18844920", "title": "", "text": "a valuable consideration but also that he acted in good faith without knowledge of the fraud”); Bentley v. Young, 210 F. 202, 205 (S.D.N.Y.1914), aff'd, 223 F. 536 (2d Cir.1915) (“the defense of a bona fide purchase[r] for value has always been an affirmative defense in the law ... ”). It was not necessary, however, for the court to go so far as to place the entire burden of proof upon the Bank in this instance, and a review of the evidence indicates that it did not truly do so. Courts have generally placed the burden of proving all of the elements of a fraudulent transfer upon the debtor seeking to avoid the transfer. See, e.g., In re Olson, 66 B.R. at 694; In re Kjeldahl, 52 B.R. at 933; Collier, supra. There is a difference, however, between shifting the burden of proof, and shifting the burden of producing evidence to meet a prima facie case. 9 Wigmore, Evidence § 2487 (3d ed.). As Wigmore writes: The burden of the issue and the duty of going forward with evidence are two very different things. The former remains on the party affirming a fact in support of his case, and does not change at any time throughout the trial. The latter may shift from side to side as the case progresses, according to the nature and strength of the proofs offered in support or denial of the main fact to be established.... A “prima facie case,” or “prima facie evidence,” does not change the burden of proof. It only stands until its weight is met by evidence to the contrary.... According to the best considered authorities, a “prima facie” case so made out need not be overcome by a preponderance of the evidence or by evidence of greater weight; but the evidence needs only to be balanced, put in equipoise, by some evidence worthy of credence; and if this be done, the burden of the evidence has been met and the duty of producing further evidence shifts back to the party having the burden of proof.... Id., quoting Speas v. Merchants" }, { "docid": "22255640", "title": "", "text": "a ticket, as well as the ability of the airline to check its record of ticket sales demonstrate no compelling reason to place the burden of proving delivery on plaintiff; in fact, plaintiff asserts, quite the contrary. Second, plaintiff notes that the discussions at the Hague Protocol are far from controlling and that defendant’s reliance on them is misplaced. Not only was there a lack of unanimity among the representatives, resulting in a failure to adopt any clarifying language in the amendments, but the United States rejected the Hague Protocol. Finally, plaintiff asserts that the Warsaw Convention places an affirmative burden upon the carrier to plead delivery of a ticket if it seeks to limit its damages, and that, as a matter of hornbook law, the burden of proof is placed on the party asserting the affirmative defense. Both parties’ analyses of this issue lacks clarity, for it is really a bifurcated question: (1) who has the burden of producing evidence, and (2) who has the burden of ultimate persuasion? Framing the issue simply as a matter of determining “burden of proof” has long been recognized as analytically unproductive, “[t]he distinction [between the two burdens] is now very generally accepted, although often confused by careless speech.” Hill v. Smith, 260 U.S. 592, 597, 43 S.Ct. 219, 220, 67 L.Ed. 419 (1923) (Holmes, J.). See Psaty v. United States, 442 F.2d 1154, 1159 (3d Cir. 1971). The burden of producing evidence, often termed the burden of going forward, is a duty owed to the trial judge to satisfy him that there is sufficient evidential material from which the jury could reasonably infer the existence of the fact to be proved. IX Wigmore on Evidence § 2487 at 278-79 (3d ed. 1940). Only after the initial burden of producing evidence (and it may shift to the other party) has been met, does the burden of ultimate persuasion arise. The party who bears that burden bears, in effect, a “risk of non-persuasion” for that party must persuade the fact-finder that the existence of a fact is more probable than its non-existence (in a" }, { "docid": "18870982", "title": "", "text": "IX Wigmore on Evidence 271 (3d ed. 1940). As Wigmore exhaustively points out, the phrase has at least two possible meanings depending upon the context used. Thus, the phrase “burden of proof” may refer to the burden of persuasion on an issue tendered to the ultimate trier of fact (see IX Wigmore, supra, § 2485), or it may refer to the duty of producing evidence to the judge sufficient to justify presentation of the issue to the trier of fact. Id. at § 2487 and see Texas Department of Community Affairs v. Burdine, 450 U.S. at 254 n.7, 101 S.Ct. at 1094 n.7. Because of this ambiguity, various courts had mistakenly thought that the process of shifting burdens of proof in the context of Title VII cases referred to the burden of persuasion rather than the burden of producing evidence. Recently the United States Supreme Court dispelled the confusion. In Burdine, supra, the Court made clear that the shifts in the burden of proof recognized in McDonnell Douglas, referred to the obligation of producing evidence and not to the burden of persuasion which “never shifts.” 450 U.S. at 253, 101 S.Ct. at 1093. Although this analytical mode has been particularly explored in Title VII cases, as Justice Powell recently reminded us, the “evidentiary relationship between the presumption created by a prima facie case and the consequential burden of production placed on the defendant is a traditional feature of the common law.” Texas Department of Community Affairs v. Burdine, 450 U.S. at 255 n.8, 101 S.Ct. at 1094 n.8. In the context of a motion for summary judgment (whether partial or full) “assessing the burden of production helps the judge determine whether the litigants have created an issue of fact to be decided by the jury. In a Title VII case, the allocation of burdens and the creation of a presumption by the establishment of a prima facie case is intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination.” Id. As Wigmore describes this aspect of the burden of proof, it is the “duty of producing" }, { "docid": "906847", "title": "", "text": "the elements would have sufficed and, further, would have minimized the possibility of confusion. CPC next argues that the court erred in instructing the jury that one prima facie element was plaintiff’s replacement with “a person outside the protected age group.” CPC argues that while this formulation is sufficient in charges of discriminatory hiring, in a discharge case the plaintiff must prove both that the defendant sought to replace him with a younger person and in fact did so. Our cases have consistently held, however, that simple proof of replacement with a person outside of the protected age group satisfies this prong of a prima facie case under the ADEA. See, e, g., Harpring v. Continental Oil Co., 628 F.2d 406, 408 (5th Cir. 1980). CPC next contends that the instructions improperly saddled it with a burden of persuading the jury that it discharged Haring for nondiscriminatory reasons. CPC is correct that if a plaintiff proves his prima facie case, the defendant is only required to clearly set forth, through the introduction of admissible evidence, the reasons for the plaintiff’s rejection. The explanation provided must be legally sufficient to justify a judgment for the defendant. If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted, and the factual inquiry proceeds to a new level of specificity. . . . The plaintiff retains the burden of persuasion. Burdine, 450 U.S. at 255-56, 101 S.Ct. at 1094-95 (footnotes omitted). Thus, had the district court in fact instructed the jury that CPC had the burden of persuasion, we would be required to reverse and remand for a new trial. Fairly read, though, the instructions did not assign a burden of persuasion to CPC. The court’s instructions, which we quoted supra, p. 1237, describe CPC’s burden in two different sentences. The first sentence states that “[o]nce the plaintiff, Mr. Haring, makes out a prima facie case of age discrimination, the defendant bears the burden of going forward to demonstrate that plaintiff was terminated for good casue [sic] . . . . ” Record, vol. IX at" }, { "docid": "18844919", "title": "", "text": "of its part of its opinion that the Bank’s argument that Leasing received an indirect benefit was “in the nature of an affirmative defense” and that therefore “the burden of proof is on the Bank to establish that Leasing received reasonably equivalent value.” Memorandum Opinion at-32. That a claim to indirect benefit is in the nature of an affirmative defense finds some support in cases interpreting section 548(c) of the Bankruptcy Code, which provides that even when a trustee has discharged its burden of proof that a transfer was fraudulent under section 548, the transfer nevertheless is not voidable as to a good faith transferee for value. Courts interpreting this provision have placed the burden of proof upon the party claiming to be a good faith transferee. 4 Collier on Bankruptcy § 548.10 (15th ed. 1985); Chorost v. Grand Rapids Factory Showrooms, Inc., 77 F.Supp. 276, 280 (D.N.J.1948), aff'd, 172 F.2d 327 (3d Cir.1949) (“the fraudulent intent of the transferor having been established by competent evidence, the transferee must prove not only that he paid a valuable consideration but also that he acted in good faith without knowledge of the fraud”); Bentley v. Young, 210 F. 202, 205 (S.D.N.Y.1914), aff'd, 223 F. 536 (2d Cir.1915) (“the defense of a bona fide purchase[r] for value has always been an affirmative defense in the law ... ”). It was not necessary, however, for the court to go so far as to place the entire burden of proof upon the Bank in this instance, and a review of the evidence indicates that it did not truly do so. Courts have generally placed the burden of proving all of the elements of a fraudulent transfer upon the debtor seeking to avoid the transfer. See, e.g., In re Olson, 66 B.R. at 694; In re Kjeldahl, 52 B.R. at 933; Collier, supra. There is a difference, however, between shifting the burden of proof, and shifting the burden of producing evidence to meet a prima facie case. 9 Wigmore, Evidence § 2487 (3d ed.). As Wigmore writes: The burden of the issue and the duty of" } ]

[ { "docid": "17915291", "title": "", "text": "not implicate her husband. The basic purpose of the rule that one spouse is incompetent to testify against the other spouse is to preserve family peace by preventing husband and wife- from becoming adversaries in a criminal proceeding. Hawkins v. United States, 1958, 358 U.S. 74, 79 S.Ct. 136, 3 L.Ed.2d 125. Brian Perlman’s codefendants thus fall outside the scope of this rule. Mrs. Perlman could be called as a witness at their trials. See United States v. Fields, 3 Cir. 1972, 458 F.2d 1194; O’Brien v. United States, 8 Cir., 1924, 299 F. 568. Similarly, she cannot refuse to testify before the grand jury about their activities. Her husband capnot be harmed by her testimony, since síie is not to testify as to matters implicating him, and since his trial has been severed. 3 Wharton’s Criminal Evidence § 777, at 113-14 (12th ed. 1955). Mrs. Perlman’s testimony before the grand jury could not increase her risk of being prosecuted by another jurisdiction. The State of Texas would be barred from making use of any testimony obtained under a federal grant of immunity. Murphy v. Waterfront Commission, 1964, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678. Further, the secrecy of the grand jury proceedings is a sufficient safeguard against any danger of foreign prosecution. In re Tierney, 5 Cir. 1972, 465 F.2d 806. We agree, however, with Mrs. Perlman’s contention that there was insufficient evidence to support a finding of contempt. Mrs. Perlman’s admissions to the district court established only that she had refused to answer any of the questions put to her before the grand jury. There was no evidence before the district court to indicate that any of those questions related to matters about which Mrs. Perlman had been ordered to testify. Indeed, Mrs. Perlman expressed her opinion that the questions implicated her husband. The trial court apparently did not question the government attorney or any of the grand jurors, all of whom were present in court at the February 20 hearing, as to the nature of the questions asked Mrs. Perl-man. Nor was the transcript of" } ]

[ { "docid": "6386306", "title": "", "text": "Sargis and Chappel. The court first asserted that it had no inherent power to grant witnesses immunity from prosecution. In a later memorandum opinion, the court stated that even if it possessed the power, granting immunity in the present case would be inappropriate because (1) immunity from federal prosecution would not necessarily compel the witnesses to testify because they might still be subject to state prosecution and (2) the testimony of Sargis and Chappel was immaterial because Saettele was not entitled to the defense of duress. I cannot agree with the majority’s conclusion that, as a matter of law, Saettele was not entitled to the defense of duress as a basis for affirming the district court. The district court concluded that Saettele “had many opportunities to escape and, thus, the defense of duress is not available.” The district court drew this conclusion, however, before receiving all available evidence on this issue. If the testimony of Chappel and Sargis corroborated Saettele’s testimony, it might have bolstered Saettele’s credibility and shed more light on the nature and extent of the alleged duress. On the present state of the record we have no way of knowing whether the witnesses’ testimony would have supported Saettele’s duress claim. Because the district court prematurely concluded that the defense was not available, that conclusion constituted an insufficient basis for rejecting the testimony of Chappel and Sargis and is, in my opinion, an improper basis for an affirmance by this court. The district court also stated that the possibility of state prosecution might deter Chappel and Sargis from testifying even if immunity were granted. I disagree with this hypothesis. Immunity granted by a federal court extends to state as well as federal prosecutions. See Kastigar v. United States, 406 U.S. 441, 456-59, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Murphy v. Waterfront Commission, 378 U.S. 52, 78-79, 84 S.Ct. 1594,12 L.Ed.2d 678 (1964); United States v. Watkins, 505 F.2d 545 (7th Cir. 1974); United States v. Armstrong, 476 F.2d 313 (5th Cir. 1973). Therefore, Sargis and Chappel, upon being granted immunity, could not use fear of state prosecution" }, { "docid": "23074167", "title": "", "text": "insufficient to advise him of the type of activity the government is inquiring about and involves him in “a guessing game as to whether or not to answer questions.” Kilgo’s contention fails to distinguish between use immunity, which is the basic concept of the 1970 Act, and transactional immunity, which was afforded by older statutes. Use immunity prohibits the witness’s compelled testimony and its fruits from being used in any manner in connection with criminal prosecution of the witness. See Murphy v. Waterfront Commission of New York, 378 U.S. 52, 79, 84 S.Ct. 1594, 12 L.Ed. 2d 678 (1964). On the other hand, transactional immunity accords immunity to the witness from prosecution for the offense to which his compelled testimony relates. See Kastigar v. United States, 406 U.S. 441, 453, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The 1970 Act differs from the older transactional immunity statutes because it does not create a defense to specific criminal charges. Instead, the Act provides a ground for suppressing the direct or indirect use of compelled evidence in any criminal prosecution save those mentioned in the statute, but prosecution may still go forward on legitimate independent evidence. Thus, § 6002 affords protection coextensive with the scope of the fifth amendment privilege against compulsory self-incrimination. After a witness has been granted use immunity under § 6002, both the witness and the prosecutor are left in virtually the same position regarding future prosecutions of the witness as if the witness had been permitted to stand upon his claim of the fifth amendment. Kastigar v. United States, 406 U.S. 441, 462, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). A number of cases dealing with transactional immunity have required the government to show in at least some detail the subject matter of the grand jury investigation. E.g., Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972); In re Vericker, 446 F.2d 244 (2d Cir. 1971); and In re Bart, 113 U.S.App.D. C. 54, 304 F.2d 631 (1962). In this respect, these cases furnish no precedent for construing the 1970 Act because they interpreted statutes which authorized" }, { "docid": "6386309", "title": "", "text": "within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that com pulsory process be available for the production of evidence needed either by the prosecution or by the defense. The compulsory process clause assures not only the right to compel the attendance of witnesses but also the right to secure their testimony: [T]he petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense. The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use. [Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967) (footnote omitted).] See Westen, The Compulsory Process Clause, 73 Mieh.L.Rev. 71 (1974). A defendant does not, however, have an absolute right to compel testimony, for a witness may refuse to testify on the ground that the testimony may be incriminating. The fifth amendment right against compulsory self-incrimination “reflects * * * our fundamental values and aspirations, and marks an important advance in the-development of our liberty.” Kastigar v. United States, supra, 406 U.S. at 444, 92 S.Ct. at 1656 (footnote omitted); accord, Murphy v. Waterfront Commission, supra, 378 U.S. at 55, 84 S.Ct. 1594 (1964); Ullman v. United States, 350 U.S. 422, 426, 76 S.Ct. 497, 100 L.Ed. 511 (1956). The conflict between these two essential rights has led to the enactment of statutes empowering prosecutors to afford immunity to witnesses who invoke their fifth amendment rights. Such statutes “seek a rational accommodation between the imperatives of the [fifth amendment] privilege and the legitimate demands of government to compel citizens to testify.” Kastigar v. United States, supra, 406 U.S. at 446, 92 S.Ct. at 1657." }, { "docid": "13588704", "title": "", "text": "readily apparent by posing a few hypothetical questions. On the other hand, when the witness is granted use immunity pursuant to 18 U.S.C. §§ 6002, 6003, see Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), his claim of privilege will usually be rejected because the immunity is normally “coextensive with the privilege,” and the witness is protected against direct or derivative use of his testimony in any later domestic prosecution against him, federal or- state. Id. at 459, 462, 92 S.Ct. at 1664, 1665; Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). Indeed, in the event of such a prosecution the prosecutor is saddled with the heavy burden of proving that his evidence was not derived directly or indirectly from the witness’ testimony. Goldberg v. United States, 472 F.2d 513, 516 (2d Cir. 1973); 18 U.S.C. § 6002. See also Murphy v. Waterfront Commission, supra, 378 U.S. at 79, 84 S.Ct. at 1609. The witness’ assertion that he fears foreign prosecution, however, raises new issues. Although a grant of immunity protects him from any domestic prosecution based on his testimony, no domestic government has the legal power to bar prosecution of him by a foreign country or to prevent the use against him in such a prosecution of testimony immunized from use against him in domestic criminal proceedings. This raises the question of whether the Fifth Amendment entitles him to protection against any prosecution abroad that might be based on or derived from his immunized testimony, a question that has not yet been answered by the Supreme Court or ourselves. See Zicarelli v. New Jersey State Commission of Investigation, 406 U.S. 472, 480-81, 92 S.Ct. 1670, 1676, 32 L.Ed.2d 234 (1972). Even if he were so entitled, presumably on the ground that the immunity must be “coextensive with the scope of the privilege,” he would still be required to show that despite the grant of immunity there is a real and substantial risk, as distinguished from a mere possibility, that answers to questions might provide a link which" }, { "docid": "6386302", "title": "", "text": "and Sargis asserted their fifth amendment privilege and refused to testify. Saettele made a motion to compel the testimony of the witnesses and asked the court either to grant them immunity or to compel the Government to seek immunity for them. In support of this motion, Saettele introduced a stipulation that an attorney associated with his trial counsel would, if called to the stand, testify that he had interviewed Sar-gis and Chappel and both had told him that they had threatened Saettele with death if he did not go through with the fencing scheme. The district court denied Saettele’s motion, ruling that it did not have inherent power to grant witnesses immunity when the Government did not apply for it. Saet-tele thereupon made a motion to strike McGirr’s testimony and a motion to dismiss the prosecution because of the unfairness of the Government’s refusal to grant immunity to his witnesses. The district court denied both motions and subsequently found Saettele guilty. Saettele argues that the evidence presented in support of his asserted defense of duress requires a judgment of acquittal. We disagree. In order to successfully raise the defense of duress a defendant in a criminal case must show a reasonable fear of death or serious bodily injury and the absence of a reasonable opportunity to escape or ■ avoid the threatened danger. United States v. Gordon, 526 F.2d 406, 407 (9th Cir. 1975). See United States v. Hearst, 563 F.2d 1331, 1335 n.l (9th Cir. 1977), cert. denied, 435 U.S. 1000, 98 S.Ct. 1656, 56 L.Ed.2d 90 (1978); United States v. Michelson, 559 F.2d 567, 569 (9th Cir. 1977); United States v. Patrick, 542 F.2d 381, 386 (7th Cir. 1976), cert. denied, 430 U.S. 931,97 S.Ct. 1551, 51 L.Ed.2d 775 (1977). Assuming arguendo that the evidence presented was sufficient to establish a reasonable apprehension of injury, nothing in the record suggests that Saettele made any attempt to escape or avoid the threatened danger or was prevented from doing so at any time. In fact Saettele’s testimony establishes the opposite. Saettele testified that he .first received the threat in early" }, { "docid": "17939068", "title": "", "text": "Court’s opinion, dim. The immunized testimony was detailed and taken at an early stage of the investigation. It is important to note that the District Court’s order of dismissal (quoted at note 2 supra) is based on the ground “that the Special Prosecutor has not met his burden of establishing that such immunity has not or will not taint the case.” Consideration of this appeal may be clarified by recognizing as precisely as we can the extent of the burden resting on the United States. We agree with the District Court’s holding that [o]nce immunity is shown, the prosecutor has the burden of demonstrating that its use of the immunized testimony has not tainted any aspect of the case up to indictment and will not do so during trial. De Diego is entitled to the full protection of his Fifth Amendment privilege against self-incrimination. That privilege is now fully applicable to the States as well as to the United States, whether the testimony is compelled under a grant of immunity by one or more of the States or by the Federal Government. In any event such a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). On the other hand, such a grant of immunity cannot afford broader protection than the Fifth Amendment privilege without infringing upon both the great common law principle that “the public has a right to every man’s evidence,” and the duty to testify “recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor.” Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). A grant of immunity broader than the Fifth Amendment privilege against self-incrimination might also infringe upon the right of another sovereignty, whether the Federal Government or another State, to enforce its laws. No balancing is required because the several rights, privileges, and duties, while co-terminal," }, { "docid": "15382656", "title": "", "text": "federal witnesses was established by 18 U.S.C. §§ 6001-6005, the Organized Crime Control Act of 1970 (the “Act”). This legislation strikes a balance between the constitutional rights of witnesses in federal prosecutions and the government’s need to compel certain testimony. Under the immunization process established by the Act, when a United States Attorney believes that a necessary witness’ testimony will be withheld in reliance on the fifth amendment privilege against self-incrimination, he may seek an order from the district court compelling the witness to testify. The witness, however, is guaranteed certain protections in return for this compelled testimony. In Re Sealed Case, 791 F.2d 179, 181 (D.C.Cir.1986). A witness ordered to testify may not refuse to comply with the order on the basis of his privilege against self-incrimination; but no testimony or other information compelled under the order (or any information directly or indirectly derived from such testimony or other information) may be used against the witness in any criminal case, except a prosecution for penury, giving a false statement, or otherwise failing to comply with the order. 18 U.S.C. § 6002. The Supreme Court has held that the protections offered by 18 U.S.C. § 6002 are coextensive with those of the fifth amendment. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). The basic test as applied by the Court is whether the grant of immunity “leaves the witness and the Federal Government in substantially the same position as if the witness had claimed his (fifth amendment) privilege.” Kastigar, 406 U.S. at 458, 92 S.Ct. at 1663, quoting Murphy v. Waterfront Comm’n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964). The Kastigar Court held that a witness testifying with a grant of immunity under 18 U.S.C. § 6002 is protected to the same extent as if he had exercised his constitutional privilege against self-incrimination. Therefore, the statutory immunity scheme was constitutionally valid. In the present case, Ms. Doe must be protected by this statutory grant of immunity to the same extent as she would be under the fifth amendment. In" }, { "docid": "14806442", "title": "", "text": "and do not bind other parties not privy to the original agreement. See United States v. Peister, 631 F.2d 658, 662 (10th Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981). This is in contrast to a formal statutory grant of immunity. The federal immunity statute prohibits the compelled testimony of a witness from being used against him “in any criminal case....” Immunity of Witnesses Act, § 201(a), 18 U.S.C. §§ 6001-6005. In order for a federal prosecutor to grant this type of immunity, he must receive approval from both the United States Attorney in' the relevant judicial district, and from a high-ranking official in the Justice Department; the immunity grant must also be approved by a federal district judge. See 18 U.S.C. § 6003. This immunity assures a witness that his immunized testimony will be inadmissible in any future criminal proceeding, as will be any evidence obtained by prosecutors directly or indirectly as a result of the immunized testimony. 18 U.S.C. § 6002. In Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), the Supreme Court held that when a witness who has given incriminating testimony under a grant of immunity pursuant to 18 U.S.C. § 6002 is subsequently prosecuted for a matter related to the compelled testimony, the government bears “the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate independent sources.” Id. at 461, 92 S.Ct. at 1665. See also Murphy v. Waterfront Comm’n of New York, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). The district court was not required to hold a Kastigar hearing with respect to the “immunity” granted to the Turners by the federal prosecutor. The federal prosecutor does not have any authority to immunize testimony absent compliance with the requirements of the federal immunity statute. He does, however, possess sole discretion in his particular district with respect to the decision to prosecute. See United States v. Nixon, 418 U.S. 683, 693, 94 S.Ct. 3090, 3100, 41 L.Ed.2d 1039 (1974). In this case, the" }, { "docid": "13243794", "title": "", "text": "438, 76 S.Ct. 497, 506, 100 L.Ed. 511 (1956) (quoted in Kastigar v. United States, 406 U.S. 441, 447, 92 S.Ct. 1653, 1657, 32 L.Ed.2d 212 (1972)). As recognized in Kastigar, they seek to strike a balance between constitutional protections against compulsory self-incrimination and the government’s power to enforce the criminal laws effectively by compelling testimony before grand juries. 406 U.S. at 446, 92 S.Ct. at 1656. The constitutionality of the use immunity statute — 18 U.S.C. § 6002 — here at issue, has been upheld by the Supreme Court, which stated that the grant of such immunity must afford the witness protection commensurate with that which would have resulted had he been permitted to invoke the Fifth Amendment privilege against self-incrimination. Id. at 452-53, 92 S.Ct. at 1660-61. Stated another way, the grant of immunity must leave the witness “ ‘in substantially the same position as if the witness had claimed his privilege’ in the absence of a grant of immunity.” Id. at 458-59, 92 S.Ct. at 1664 (quoting Murphy v. Waterfront Comm’n, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609, 12 L.Ed.2d 678 (1964)). This rule permits the compulsion of incriminating testimony, but bars any use— derivative or otherwise — of the testimony so obtained. Section 6002 provides a “sweeping proscription” of any direct or indirect use of the testimony, including its use as an investigatory lead, or as a means of focusing an investigation on the witness. See Kastigar, 406 U.S. at 460, 92 S.Ct. at 1664. Further, once the witness has testified under a grant of immunity, the government bears the burden of demonstrating that its proof in a subsequent proceeding was derived from a wholly-independent source, untainted by the immunized testimony. See Murphy, 378 U.S. at 79 n. 18, 84 S.Ct. at 1609 n. 18. A defendant raising a claim that the provisions of § 6002 have been violated “need only show that he testified under a grant of immunity in order to shift to the government the heavy burden of proving that all of the evidence it proposes to use was derived from legitimate" }, { "docid": "8220006", "title": "", "text": "to testify.” Kastigar v. United States, 406 U.S. 441, 446, 92 S.Ct. 1653, 1657, 32 L.Ed.2d 212 (1972). Accord Pillsbury Co. v. Conboy, 459 U.S. 248, 252-54, 103 S.Ct. 608, 611-12, 74 L.Ed.2d 430 (1983). Because the fifth-amendment privilege is paramount, however, see Kastigar v. United States, supra at 444, 92 S.Ct. at 1656, an accused is entitled to an assurance that he is as protected from use against himself of his immunized testimony as he would be from invocation of the privilege itself. Thus, as the Supreme Court has explained, a grant of testimonial immunity “is coextensive with” an accused’s fifth-amendment constitutional right against self-incrimination. Id. at 453, 92 S.Ct. at 1661; accord Pillsbury Co. v. Conboy, supra at 254-55, 103 S.Ct. at 612-13. Accordingly, “the Federal Government must be prohibited from making any ... use of compelled testimony and its fruits.” Murphy v. Waterfront Commission, 378 U.S. 52, 79, 84 S.Ct. 1594, 1609-10, 12 L.Ed.2d 678 (footnote omitted). Accord Kastigar v. United States, supra, 406 U.S. at 453, 92 S.Ct. at 1661. The objective of “immunity from use and derivative use” of compelled testimony is to “ ‘leave[ ] the witness and the Federal Government in substantially the same position as if the witness had claimed his privilege in the absence of a ... grant of immunity.” Id. at 458-59, 92 S.Ct. at 1664, quoting Murphy v. Waterfront Comm’n., supra, 378 U.S. at 79, 84 S.Ct. at 1609-10. To ensure this maintenance of the status quo between an accused and the Government, the Supreme Court set out the following standard: “Once a defendant demonstrates that he has testified, under a ... grant of immunity, to matters related to the ... prosecution, the ... authorities have the burden of showing that their evidence is not tainted by establishing that they had an independent, legitimate source for the disputed evidence.” [Murphy v. Waterfront Comm’n., ] 378 U.S., at 79 n. 18, 84 S.Ct. at 1609 n. 18. This burden of proof, which we reaffirm as appropriate, is not limited to a negation of taint; rather, it imposes on the prosecution" }, { "docid": "6386307", "title": "", "text": "extent of the alleged duress. On the present state of the record we have no way of knowing whether the witnesses’ testimony would have supported Saettele’s duress claim. Because the district court prematurely concluded that the defense was not available, that conclusion constituted an insufficient basis for rejecting the testimony of Chappel and Sargis and is, in my opinion, an improper basis for an affirmance by this court. The district court also stated that the possibility of state prosecution might deter Chappel and Sargis from testifying even if immunity were granted. I disagree with this hypothesis. Immunity granted by a federal court extends to state as well as federal prosecutions. See Kastigar v. United States, 406 U.S. 441, 456-59, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972); Murphy v. Waterfront Commission, 378 U.S. 52, 78-79, 84 S.Ct. 1594,12 L.Ed.2d 678 (1964); United States v. Watkins, 505 F.2d 545 (7th Cir. 1974); United States v. Armstrong, 476 F.2d 313 (5th Cir. 1973). Therefore, Sargis and Chappel, upon being granted immunity, could not use fear of state prosecution as a basis for invoking their fifth amendment privilege. The district court’s final basis for denying Saettele’s motion — that it lacked the power to grant immunity or to compel the prosecution to do so — presents greater difficulty, for it raises important questions of conflicting constitutional rights and responsibilities. The compulsory process clause of the sixth amendment guarantees a defendant’s right to secure the testimony of witnesses on his or her behalf, a right that plays a fundamental role in our system of criminal justice. The Supreme Court recently emphasized the importance of the compulsory process clause in United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974): The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts," }, { "docid": "6386308", "title": "", "text": "as a basis for invoking their fifth amendment privilege. The district court’s final basis for denying Saettele’s motion — that it lacked the power to grant immunity or to compel the prosecution to do so — presents greater difficulty, for it raises important questions of conflicting constitutional rights and responsibilities. The compulsory process clause of the sixth amendment guarantees a defendant’s right to secure the testimony of witnesses on his or her behalf, a right that plays a fundamental role in our system of criminal justice. The Supreme Court recently emphasized the importance of the compulsory process clause in United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 3108, 41 L.Ed.2d 1039 (1974): The need to develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts. The very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence. To ensure that justice is done, it is imperative to the function of courts that com pulsory process be available for the production of evidence needed either by the prosecution or by the defense. The compulsory process clause assures not only the right to compel the attendance of witnesses but also the right to secure their testimony: [T]he petitioner in this case was denied his right to have compulsory process for obtaining witnesses in his favor because the State arbitrarily denied him the right to put on the stand a witness who was physically and mentally capable of testifying to events that he had personally observed, and whose testimony would have been relevant and material to the defense. The Framers of the Constitution did not intend to commit the futile act of giving to a defendant the right to secure the attendance of witnesses whose testimony he had no right to use. [Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 1925, 18 L.Ed.2d 1019 (1967)" }, { "docid": "6386305", "title": "", "text": "sentenced to serve concurrent terms of three years imprisonment on each count. . The classic definition of duress is contained in Shannon v. United States, 76 F.2d 490, 493 (10th Cir. 1935): Coercion which will excuse the commission of a criminal act must be immediate and of such nature as to induce a well-grounded apprehension of death or serious bodily injury if the act is not done. One who has full opportunity to avoid the act without danger of that kind cannot invoke the doctrine of coercion . . This is a large assumption. Both Sargis and Chappel previously had informed the prosecution that neither Saettele nor his family were threatened or forced to buy any jewelry. BRIGHT, Circuit Judge, dissenting. I respectfully dissent. For reasons stated below, I believe this court must consider and accept in part Saettele’s contention that he was denied a fair trial because the Government immunized its chief witness but declined to offer immunity to Saettele’s witnesses. The district court stated three grounds for denying Saettele’s motions regarding immunity for Sargis and Chappel. The court first asserted that it had no inherent power to grant witnesses immunity from prosecution. In a later memorandum opinion, the court stated that even if it possessed the power, granting immunity in the present case would be inappropriate because (1) immunity from federal prosecution would not necessarily compel the witnesses to testify because they might still be subject to state prosecution and (2) the testimony of Sargis and Chappel was immaterial because Saettele was not entitled to the defense of duress. I cannot agree with the majority’s conclusion that, as a matter of law, Saettele was not entitled to the defense of duress as a basis for affirming the district court. The district court concluded that Saettele “had many opportunities to escape and, thus, the defense of duress is not available.” The district court drew this conclusion, however, before receiving all available evidence on this issue. If the testimony of Chappel and Sargis corroborated Saettele’s testimony, it might have bolstered Saettele’s credibility and shed more light on the nature and" }, { "docid": "17939069", "title": "", "text": "the States or by the Federal Government. In any event such a grant of immunity is valid only if it is coextensive with the scope of the privilege against self-incrimination. Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). On the other hand, such a grant of immunity cannot afford broader protection than the Fifth Amendment privilege without infringing upon both the great common law principle that “the public has a right to every man’s evidence,” and the duty to testify “recognized in the Sixth Amendment requirements that an accused be confronted with the witnesses against him, and have compulsory process for obtaining witnesses in his favor.” Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). A grant of immunity broader than the Fifth Amendment privilege against self-incrimination might also infringe upon the right of another sovereignty, whether the Federal Government or another State, to enforce its laws. No balancing is required because the several rights, privileges, and duties, while co-terminal, are not conflicting. Each is accommodated by placing the accused in the same position as if he had claimed his privilege and refused to testify in the absence of a grant of immunity. Kastigar, supra, 406 U.S. at 441, 92 S.Ct. 1653. As against De Diego the United States bears the “heavy burden” (id. at 461, 92 S.Ct. 1653) of proving that all of the evidence used or to be used was derived from legitimate independent sources. Further, “the compelled testimony can in no way lead to the infliction of criminal penalties” on the witness. Id. The prosecution must show that it did not and will not use against De Diego his immunized testimony or its fruits “in any respect.” Id. at 453, 92 S.Ct. 1653 (emphasis by the Court). In the taint hearing the trial judge does not weigh the evidence he finds untainted. His function is exhausted when he separates the tainted from the untainted. The decision as to continuing the prosecution is the prosecutor’s. The very fact that the burden on the" }, { "docid": "4927950", "title": "", "text": "States v. Housand, 550 F.2d 818, 824 (2nd Cir. 1977), cert, denied, 431 U.S. 970, 97 S.Ct. 2931, 53 L.Ed.2d 1066 (1977). The Court is without power to grant immunity except upon his or her request. United States v. Berrigan, 482 F.2d 171, 190 (3rd Cir. 1973). This is, of course, the statutory scheme now in force. No doubt it reflects concern about judicial usurpation of the executive’s prosecutorial role. Until 1970, when the federal immunity statutes resulted in the conferring of complete, transactional immunity on a witness, the courts’ adamant refusal to interfere in any way with the government’s decision to grant or to withhold immunity was easy to understand. The enactment of 18 U.S.C. §§ 6001 et seq., however, which provides only for the grant of use immunity, has operated to change the balance. But see United States v. Allstate Mortgage Corp., 507 F.2d 492 (7th Cir. 1974), cert, denied, 421 U.S. 999, 95 S.Ct. 2396, 44 L.Ed.2d 666 (1975). Testimonial “use” immunity is sufficient to vindicate fully a witness’s Fifth Amendment rights, but it does not operate to foreclose future prosecutions. Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). A grant of immunity thus does not infringe upon the government’s interest in law enforcement to the extent that transactional immunity would. The availability of use immunity can protect the government’s interest in potential future prosecution of a witness while also satisfying the interest of the criminal defendant in the presentation of testimony which can exculpate him. See generally, Note, Right of the Criminal Defendant to the Compelled Testimony of Witnesses, 67 Colum.L.Rev. 953 (1967). The Sixth Amendment to the Constitution guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right to have compulsory process for obtaining witnesses in his favor . . . ” The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense, the right to present the defendant’s version of the facts as well as the prosecution’s to the jury so it" }, { "docid": "6386320", "title": "", "text": "accordance with subsection (b) of this section, upon the request of the United States attorney for such district, an order requiring such individual to give testimony or provide other information which he refuses to give or provide on the basis of his privilege against self-incrimination, such order to become effective as provided in section 6002 of this part. (b) A United States attorney may, with the approval of the Attorney General, the Deputy Attorney General, or any designated Assistant Attorney General, request an order under subsection (a) of this section when in his judgment— (1) the testimony or other information from such individual may be necessary to the public interest; and (2) such individual has refused or is likely to refuse to testify or provide other information on the basis of his privilege against self-incrimination. . One possible reason is that the Government would sacrifice the opportunity to prosecute Sargis and Chappel. Saettele argues in his brief that the Government had already decided not to do so. Whether this assertion is true or not, the Government would lose little by granting use immunity. As one commentator has noted: Kastigar’s analysis applies with equal force to the grant of use immunity to defense witnesses. The prosecution surrenders nothing by granting it: The incriminating statements that it cannot use against the immunized witness are statements that, absent immunity, would never have been made. The prosecution can hardly complain about immunizing defense witnesses because, as the Supreme Court said, the prosecution is in substantially the same position with respect to a witness after granting him immunity as before. [Westen, The Compulsory Process Clause, 73 Mich.L.Rev. 71, 169 (1974) (emphasis added).] Here, Sargis and Chappel apparently told their story at least in part prior to trial but had made no incriminating statements under oath. The Government could, of course, use information obtained prior to the grant of immunity. . The case need not be retried in its entirety on the theory of this dissent. The district court could allow Saettele to reopen his defense and should allow the Government an opportunity to grant immunity" }, { "docid": "13588703", "title": "", "text": "periodically to Ireland on political or personal business. Lastly, Judge McLaughlin held the federal grant of immunity insufficient to protect Flanagan abroad for the reason that foreign prosecutors would not be required to assure him that their charges would be based upon evidence independent of his compelled testimony. From the court’s denial of its motion to compel Flanagan’s testimony under 28 U.S.C. § 1826(a) the government appeals. DISCUSSION The Fifth Amendment protects a witness against giving testimony that would “furnish a link in the chain of evidence needed to prosecute” him for a crime, provided “the witness has reasonable cause to apprehend danger from a direct answer.” Hoffman v. United States, 341 U.S. 479, 486, 71 S.Ct. 814, 818, 95 L.Ed. 1118 (1951). But “his say-so does not of itself establish the hazard of incrimination.” Id. at 486, 71 S.Ct. at 818. When his asserted fear is challenged, the court must look to the surrounding circumstances and context to determine whether the asserted fear is real or imaginary. Often the risk of incrimination is made readily apparent by posing a few hypothetical questions. On the other hand, when the witness is granted use immunity pursuant to 18 U.S.C. §§ 6002, 6003, see Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972), his claim of privilege will usually be rejected because the immunity is normally “coextensive with the privilege,” and the witness is protected against direct or derivative use of his testimony in any later domestic prosecution against him, federal or- state. Id. at 459, 462, 92 S.Ct. at 1664, 1665; Murphy v. Waterfront Commission, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). Indeed, in the event of such a prosecution the prosecutor is saddled with the heavy burden of proving that his evidence was not derived directly or indirectly from the witness’ testimony. Goldberg v. United States, 472 F.2d 513, 516 (2d Cir. 1973); 18 U.S.C. § 6002. See also Murphy v. Waterfront Commission, supra, 378 U.S. at 79, 84 S.Ct. at 1609. The witness’ assertion that he fears foreign prosecution, however, raises" }, { "docid": "6386316", "title": "", "text": "court may be able to condition the introduction of government evidence on the Government’s agreement to grant immunity to defense witnesses. United States v. Leonard, 161 U.S.App.D.C. 36, 66, 494 F.2d 955, 985 n.79 (1974) (Bazelon, C. J., concurring in part and dissenting in part). See also United States v. Gaither, 176 U.S. App.D.C. 274, 539 F.2d 753, cert. denied, 429 U.S. 961, 97 S.Ct. 388, 50 L.Ed.2d 329 (1976) (statement of Bazelon, C. J., upon denial of petition for rehearing en banc). The Seventh Circuit in United States v. Allstate Mortgage Corp., 507 F.2d 492 (7th Cir. 1974), cert. denied, 421 U.S. 999, 95 S.Ct. 2396, 44 L.Ed.2d 666 (1975), held that a defendant has no constitutional right to have immunity conferred upon witnesses who exercise their fifth amendment privilege; yet it expressly contrasted the case with a situation in which the Government secures evidence by means of grants of immunity. In United States v. Alessio, 528 F.2d 1079 (9th Cir.), cert. denied, 426 U.S. 948, 96 S.Ct. 3167, 49 L.Ed.2d 1184 (1976), the court refused to compel the Government to grant immunity to defense witnesses. The court noted that the “key question” was whether the defendant “was denied a fair trial because of the government’s refusal to seek immunity for defense witnesses,” but it concluded that the defendant was not denied a fair trial because the proffered evidence was merely cumulative. Id. at 1082. In the present case, the Government refused to grant immunity to Chappel and Sargis, thereby placing their testimony out of Saettele’s reach. These were the only witnesses who might have rebutted McGirr’s testimony and corroborated Saet-tele’s own story. The Government presented no affirmative reason for refusing immunity to these two witnesses. In fact, the prosecutor had already offered immunity to Chappel but withdrew the offer when it appeared that Chappel’s testimony would support Saettele’s defense. Thus, the Government utilized its immunity-granting power to obtain McGirr’s crucial testimony and to make its case against Saettele, but it denied Saettele the benefit of that power and, as a result, the opportunity to obtain offsetting testimony. The" }, { "docid": "6386301", "title": "", "text": "threatened to kill her husband and the rest of his family if he told anyone about the stolen jewelry. Saettele also called Thomas Sargis and Marshall Chappel as witnesses on his behalf. Both men were present in the courtroom, Chappel under subpoena and Sargis under a writ of habeas corpus ad testificandum. When Chappel was called to the stand, the prosecutor informed the court that Chappel might refuse to testify on fifth amendment grounds. A bench conference disclosed that the prosecutor had, until the prior evening, been prepared to grant Chappel immunity in order to secure his testimony as a government witness. Although time constraints prevented the prosecutor from obtaining a formal grant of immunity under 18 U.S.C. §§ 6002, 6003 (1976), Chappel agreed to testify if he received a letter from the acting United States attorney declining prosecution. That evening, however, Chappel made statements supporting Saettele’s duress contentions. The prosecutor informed Saettele’s counsel of these statements, decided not to call Chappel as a witness, and withdrew the offer of immunity. As anticipated, both Chappel and Sargis asserted their fifth amendment privilege and refused to testify. Saettele made a motion to compel the testimony of the witnesses and asked the court either to grant them immunity or to compel the Government to seek immunity for them. In support of this motion, Saettele introduced a stipulation that an attorney associated with his trial counsel would, if called to the stand, testify that he had interviewed Sar-gis and Chappel and both had told him that they had threatened Saettele with death if he did not go through with the fencing scheme. The district court denied Saettele’s motion, ruling that it did not have inherent power to grant witnesses immunity when the Government did not apply for it. Saet-tele thereupon made a motion to strike McGirr’s testimony and a motion to dismiss the prosecution because of the unfairness of the Government’s refusal to grant immunity to his witnesses. The district court denied both motions and subsequently found Saettele guilty. Saettele argues that the evidence presented in support of his asserted defense of duress" }, { "docid": "14320332", "title": "", "text": "to give against himself within the meaning of the Fifth Amendment, it would follow that he will be entitled to an implied immunity against the use of such testimony in any federal criminal proceeding. Cf. Garrity v. New Jersey, 385 U.S. 493, 87 S.Ct. 616, 17 L.Ed.2d 562. Furthermore, on the facts alleged by Patrick, such later testimony would be elicited only because the government could use the grand jury testimony as a basis for the assessment. Thus, any testimony elicited in the tax proceeding would be “information . . . indirectly derived from . . . testimony” compelled under the original immunity grant and thus could not be used against Patrick in any criminal proceeding. Kastigar v. United States, 406 U.S. 441, 449, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Such derivative use immunity, of course, would also prevent state prosecuting authorities from using the testimony. Murphy v. Waterfront Comm’n, 378 U.S. 52, 84 S.Ct. 1594, 12 L.Ed.2d 678 (1964). Finally, Patrick contends that the use of his immunized testimony against him in a civil case shows that the immunity granted under 18 U.S.C. §§ 6002 and 6003 is not as broad as the privilege it supplants. The Fifth Amendment provides that no person shall be compelled to be a witness against himself in a criminal case. A witness has no Fifth Amendment privilege against giving testimony detrimental to his interests in a civil case unless such testimony tends to incriminate him; if the risk of criminal consequences is removed by a grant of immunity, no Fifth Amendment objection remains. United States v. Cappetto, 502 F.2d 1351 (7th Cir. 1974). See Kastigar v. United States, 406 U.S. 441, 92 S.Ct. 1653, 32 L.Ed.2d 212 (1972). Since plaintiffs have not been able to show that the government cannot possibly prevail, these actions are barred by the Anti-Injunction Statute and were correctly dismissed. Affirmed. . These conclusions are summarized in the covering letter from the U. S. Attorney’s Office to the Internal Revenue Service enclosing excerpts from the Grand Jury testimony released by order of the district court. That letter included" } ]

[ { "docid": "17082727", "title": "", "text": "to invoke its right to sell NHI. Because Plaintiffs must assert factual allegations that “raise a right to relief above a speculative level,” Twombly, 550 U.S. at 555, 127 S.Ct. 1955, Defendants’ Motion to Dismiss the tortious interference claim is granted. 5. Aiding and Abetting Breach of Fiduciary Duty Plaintiffs allege that Bessemer, Levine, Erwin, and Price aided and abetted the breach of fiduciary duty related to the refusal to consider the AVG offer; Marteau’s exclusion from the BOD and removal as NHI’s President and CEO; and Erwin’s and Price’s preparation and execution of false documents necessary for the approval of the 2009 Stock Option Plan and related to an Intego S.A. annual meeting. (SAC ¶¶ 211-20.) “A claim for aiding and abetting a breach of fiduciary duty under New York law requires: (1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach.” Johnson v. Nextel Commc’ns, Inc., 660 F.3d 131, 142 (2d Cir.2011) (alteration and internal quotation marks omitted). Although Plaintiffs have established a plausible primary derivative breach of fiduciary duty claim with respect to Bessemer, Erwin, and Levine regarding the AVG offer, the aiding and abetting claim is duplicative with respect to those Defendants, and the SAC contains no allegations that Price had any involvement in the failure to consider the AVG offer or was even employed by NHI at the time. This claim, as it relates to the AVG offer, is accordingly dismissed. Plaintiffs have also established a plausible primary derivative breach of fiduciary duty claim against Erwin and Le vine regarding the false documents created for 2009 Stock Option Plan and Intego S.A. annual meeting. As discussed above, any aiding and abetting claim asserted against Erwin and Levine is duplicative, and there is no plausible primary breach with respect to Bessemer. To plausibly state a claim for aiding and abetting a breach of fiduciary duty against Price, Plaintiffs must allege specifically how Price knowingly induced or participated in the breach. See Wilson v." } ]

[ { "docid": "4374207", "title": "", "text": "a matter of law, parent corporations do not owe fiduciary duties to their wholly-owned subsidiaries. (AMC’s Motion, at 11.) Plaintiffs also allege that AMC aided and abetted Grupo and/or one or more of ASARCO’s directors’ breaches of fiduciary duties. (Compl.1l 110.) Plaintiffs claim that Grupo and ASARCO’s directors owed fiduciary duties to ASARCO and its credi tors because ASARCO was insolvent and that AMC knowingly and intentionally assisted Grupo and ASARCO’s directors in breaching these duties. (Id. ¶ 108, 110.) Defendant seeks to dismiss this claim, arguing that there cannot have been an underlying breach of fiduciary duty by Grupo and that the Complaint fails to allege sufficient facts to support an inference that ASARCO’s directors had a fiduciary duty to ASARCO or its creditors. (AMC’s Motion, at 16). In short, AMC argues that neither Grupo nor ASARCO’s directors owed a fiduciary duty; thus it is impossible for AMC to have aided and abetted the breach of a duty that did not exist. A. Fiduciary Duty Choice of Law Federal courts sitting in Texas must apply the law of the state of incorporation when a corporation’s internal affairs are implicated. Sommers Drug Stores Co. Employee Profit Sharing v. Corrigan, 888 F.2d 345, 353-354 (5th Cir.1989) (relying on Tex. Bus. CoRP. Act Ann. art 8.02 (Vernon 2003)); see also American Realty Trust Inc. v. Matisse Capital Partners, LLC, 91 Fed.Appx. 904, 910-12 (5th Cir.2003); Enigma Holdings, 2006 WL 2859369, at *7 (both in context of fiduciary duty claims). Plaintiffs conclude that New Jersey law should apply to this claim. Transcript Mot. Hr’g 72:5-7. Defendant agrees that New Jersey or Delaware law could control the breach of fiduciary duty and aiding and abetting the breach of fiduciary duty claims. Transcript Mot. Hr’g 52:12-23. In the context of a shareholder suit alleging a breach of fiduciary duty, a District Court has held that “each challenged act must be evaluated under the law of the state of [ ] incorporation at the time of the act.” Weaver v. Kellogg, 216 B.R. 563, 585 (S.D.Tex.1997) (applying Delaware law to a corporation that was originally a" }, { "docid": "8793934", "title": "", "text": "corporation may also bring an action,” although “damages may be limited so as to avoid a double recovery.” “[U]nder New York law an allegation of misrepresentation of present fact that is the inducement for the contract may state a [direct] claim for fraud.” However, “allegations of mismanagement or diversion of assets by officers or directors to their own enrichment, without more, plead a wrong to the corporation only, for which a shareholder may sue derivatively but not individually.” 3. Plaintiffs Lack Standing to Assert Direct Claims for Breach of Fiduciary Duty, Aiding and Abetting Breach of Fiduciary Duty, Gross Negligence, Breach of Contract, and Unjust Enrichment (Counts V-VII and IX-X) Defendants argue that Plaintiffs’ claims for breach of fiduciary duty (Count VI), aiding and abetting breach of fiduciary duty (Count VII), gross negligence (Count V), third party beneficiary breach of contract (IX), and unjust enrichment (Count X) should be dismissed, because “[t]he gravamen of Plaintiffs’ claims is that the Defendants failed to supervise adequately the investment of the Funds’ assets, resulting in the loss of those assets,” thereby breaching duties owed only to the Funds. They point to “a number of cases involving similarly situated Madoff feeder funds” in which “courts have dismissed such common law claims against investment advisors and other fund service providers for the very reason that the plaintiffs lacked standing to pursue derivative claims.” Upon a close assessment of all five claims, I conclude that each is “a classic claim of fund mismanagement that belongs to the Fund, and is therefore derivative.” a. Plaintiffs’ Claims for Breach of Fiduciary Duty, Aiding and Abetting Breach of Fiduciary Duty, Gross Negligence and Unjust Enrichment Are Derivative Plaintiffs’ breach of fiduciary duty claim is based on Defendants’ alleged “fail[ure] to conduct adequate due diligence and monitoring with respect to Optimal U.S.’s investments, by failing to follow-up on red flags that would have caused them to discover that Madoff was perpetrating a Ponzi scheme, and by pocketing hundreds of millions of dollars in fees based on fraudulent asset values and investment returns.” Similarly, Plaintiffs’ gross negligence claim is based on" }, { "docid": "1642035", "title": "", "text": "state a plausible claim that the Defendants intentionally acted with a purpose other than advancing the best interests of the corporation or failed to act where there was a known duty to act. Therefore, the Defendants’ Motions to Dismiss with respect to the post-limitations breach of fiduciary duty claims are denied. D. Aiding and Abetting Claim The Trustee asserts in the Amended Complaint that the Defendants, including Innovation, knowingly aided and abetted one another in breaches of fiduciary duty to the Debtor by encouraging, participating, and approving the Challenged Transactions, causing damage to the estate. The Trustee bases the aiding and abetting charges on the claims that the Defendants breached fiduciary duties to the Debtor and its creditors. In response, the Defendants argue that they did not owe or breach any duty to the Debtors. To establish an aiding and abetting claim under Delaware law, a plaintiff must demonstrate: “(1) the existence of a fiduciary relationship; (2) a breach of a fiduciary duty; (3) knowing participation in the breach by a defendant who is not a fiduciary; and (4) damages proximately caused by the breach.” In re Transkaryotic Therapies, Inc., 954 A.2d 346, 370 (Del.Ch. 2008) (citing McGowan v. Ferro, 859 A.2d 1012, 1041 (Del.Ch.2004), aff'd, 873 A.2d 1099 (Del.2005)). Based on the Court’s fiduciary duty analysis, because the Trustee has alleged sufficient facts to withstand the Defendants’ Motions to Dismiss, the Court will deny the Motion to Dismiss the aiding and abetting claims (Count XI) as to all of the Defendants. E. Fraudulent Conveyance Claims The Trustee complains that the Defendants are guilty of fraudulent and preferential transfers involving the obligations incurred and payments made on Innovation’s behalf that were without benefit to the Debtor. The Trustee advances two theories for relief, actual and constructive fraud and Bankruptcy Code Sections 544 and 548. 1. Actual Fraud The Trustee claims that under Code Sections 544 and 548 and Delaware law the Challenged Transactions constitute actual fraudulent transfers. The transfers in question are the Debtor’s incurrence of obligations on behalf of Innovation and making payments to CapSource in satisfaction of Innovation’s" }, { "docid": "1712193", "title": "", "text": "be appropriate to look to the “surrounding circumstances” when a contract’s literal terms are ambiguous or provide latitude, the language of the various agreements here contain only a deafening silence on this point. Thus, even construing the relevant provisions in the light most favorable to Plaintiffs, the text fails to show an intent to confer third-party beneficiary status on Plaintiffs. Thus, the Court cannot look to establish third-party beneficiary status through surrounding circumstances. Accordingly, the Court - grants the PwC Member Firms’ motions to dismiss the third-party-beneficiary breach of contract claim. d. Aiding and Abetting a Breach of Fiduciary Duty and Fraud Plaintiffs claim that the PwC Member Firms aided and abetted a breach of a fiduciary duty and fraud committed by the Fraud Defendants. The Court will evaluate each of these causes of action applying the standards described above in connection with Plaintiffs’ similar claims against other Defendants. The PwC Member Firms’ argue that Plaintiffs fail to assert a plausible aiding and abetting cause of action against them because of insufficient allegations of knowledge of either the breach of duty or fraud. The Court agrees. As described above, the SCAC does not properly allege that any of the PwC Members Firms had actual knowledge or demonstrated reckless avoidance of the red flags that would or should have put them on alert to the fraud or breach of duty committed by the Fairfield Defendants and the Fraud Defendants. Accordingly, the Court grants the PwC Member Firms’ motions with regard to Plaintiffs’ claims alleging aiding and abetting a breach of fiduciary duty and aiding and abetting fraud. e. Unjust Enrichment The PwC Member Firms assert that Plaintiffs’ unjust enrichment claim against them must be dismissed because a party cannot maintain an action for unjust enrichment when a valid and enforceable contract governs the subject matter at issue. Plaintiffs have not proffered any opposition to this argument. The Court agrees with the PwC Member Firms that the valid and enforceable contracts here, the engagement agreements between the PwC Member Firms and the Funds, govern the subject matter at issue. See Clark-Fitzpatrick, Inc.," }, { "docid": "6759178", "title": "", "text": "as a corporate official that created a personal relationship of trust and confidence”). The Court is persuaded that the CAC contains a derivative claim of the type that Krys rejected. The Court thus grants the .motion to dismiss Counts Three, Five, and Eleven. c. Aiding and Abetting Breach of Fiduciary Duty To state a claim for aiding and abetting a breach of fiduciary duty, a plaintiff must show: “(1) breach of fiduciary obligations to another of which the aider and abettor had actual knowledge; (2) the defendant knowingly induced or participated in the breach; and (3) plaintiff suffered actual damages as a result of the breach.” Kottler v. Deutsche Bank AG, 607 F.Supp.2d 447, 466 (S.D.N.Y.2009). A plaintiff must plead actual knowledge, as opposed to constructive knowledge. See Krys, 486 Fed.Appx. at 157. But the actual knowledge prong can also be met by pleading facts sufficient give rise to a strong inference of conscious avoidance of actual knowledge, “such that it can almost be said that the defendant actually knew because he or she suspected a fact and realized its probability, but refrained from confirming it in order later to be able to deny knowledge.” Kirschner v. Bennett, 648 F.Supp.2d 525, 544 (S.D.N.Y.2009) (internal quotation marks omitted). “The Court will not spare a putative aider and abettor who consciously avoids confirming facts that, if known, would demonstrate the fraudulent nature of the endeavor he or she substantially furthers.” Anwar II, 728 F.Supp.2d at 442-43 (internal quotation marks omitted). Plaintiffs claim that the D & O Defendants aided and abetted MFGI’s breaches of fiduciary duty. (Pls.’ Joint D & O Opp’n at 52.) An FCM owes its clients a fiduciary duty. See Sherman, 570 F.Supp. at 1269 n. 10. The D & O Defendants suggest that the contract between each customer and MFGI limits the scope of that duty and thus prevents Plaintiffs from showing that any fiduciary duty was breached. (D & O Defs.’ Joint Mem. at 50-51.) But any contract between MFGI and each customer could not eliminate MFGI’s duty to keep customer funds segregated in accordance with the" }, { "docid": "6759185", "title": "", "text": "Kirschner, 648 F.Supp.2d at 543. For these reasons,the Court is not persuaded that the conversion claim should be dismissed. Finally, Plaintiffs also bring a claim for aiding and abetting conversion. “Under New York law, the elements of aiding and abetting a breach of fiduciary duty [and] aiding and abetting a conversion ... are substantially similar.” Id. at 533. The Court determined that the CAC survives the motion to dismiss claims against Corzine and O’Brien for aiding and abetting breach of fiduciary duty. For similar reasons, the Court denies the motion to dismiss the claims against them for aiding and abetting conversion. e. Negligence Counts Six and Seven of the CAC state claims against all of the D & O Defendants for negligence. Count Six is brought on behalf of the Customers and the Trustee for breach of duties relating to the segregation of Customer Funds, and Count Seven is brought on behalf of the Trustee for breach of duties to MFGI which led to its bankruptcy. In order -to state a claim for negligence, a plaintiff must allege “ (1) that the defendant owed him or her a cogniza ble duty of care; (2) that the defendant breached that duty; and (3) that the plaintiff suffered damage as a proximate result of that breach.” Di Benedetto v. Pan Am World Serv., Inc., 359 F.3d 627, 630 (2d Cir.2004). The D & O Defendants claim only that Plaintiffs have not demonstrated the existence of a duty of care. “The existence and scope of an alleged tortfeasor’s duty is, in the first instance, a legal question for determination by the court.” Di Ponzio v. Riordan, 89 N.Y.2d 578, 657 N.Y.S.2d 377, 679 N.E.2d 616, 618 (1997). The P & O Defendants first argue that they owed no duty to the Plaintiffs under the economic loss doctrine. (P & O Defs.’ Joint Mem. at 59-60.) The economic loss doctrine requires a “policy-driven scrutiny of whether a defendant had a duty to protect a plaintiff against purely economic losses.” King Cnty., Wash. v. IKB Deutsche Industriebank AG, 863 F.Supp.2d 288, 302 (S.D.N.Y.2012). Plaintiffs who" }, { "docid": "17082731", "title": "", "text": "approximate fair market value of their NHI shares. (Id. ¶ 221.) While it is plausible that the stock option grant harmed Plaintiffs through dilution of NHI’s share value, the potential invalidation of any action undertaken at Intego S.A.’s annual meeting fails to allege harm to Plaintiffs. The SAC contains no allegations of what actions — if any — were ratified at the meeting, and it is implausible that Plaintiffs would suffer damages were any actions deemed invalid under French law — particularly as Erwin had replaced Marteau as the President and CEO of Intego by the time of the annual meeting, (id. ¶ 55), and the SAC does not allege that Plaintiffs had any further involvement with Intego, other than ownership of shares via NHI, following this date, (id. ¶ 18). As Plaintiffs have not alleged any damages caused by Price’s falsification of documents for the Intego S.A. meeting, Defendants’’ Motion to ■ Dismiss is thus granted with respect to the annual meeting documents. But, as Plaintiffs have plausibly alleged damages caused by Price’s falsification of documents related to the stock option grant, Defendants’ Motion is denied with respect to that aspect of the aiding and abetting claim. Regarding any other aiding and abetting the breach of fiduciary duty claims asserted by Defendants, the SAC fails to plead these allegations with the requisite specificity. See Wilson, 2013 WL 92999, at *5. It is unclear from the SAC which alleged breaches were aided and abetted by which Defendants or how these Defendants induced or participated in the breach. {See SAC ¶ 220 (“Bessemer, Levine, Erwin and Price knowingly participated in the breach of fiduciary duties owed to plaintiffs.”).) It is not even clear which Defendant is alleged to have “affirmatively assisted], help[ed] conceal or fail[ed] to act when required to do so, thereby enabling the breach to occur.” Kaufman, 760 N.Y.S.2d at 170. Defendants’ Motion to Dismiss is thus granted with respect to any other potential claims for aiding and abetting the breach of fiduciary duty. 6. Other Blatant Tortious Misconduct Plaintiffs bring a claim against Erwin and Price for “[o]ther" }, { "docid": "10600442", "title": "", "text": "with each other to engage in the various activities set forth herein, agreed to participate in the operation of a conspiracy to defraud the named plaintiffs and members of the Class herein, and aided and abetted one another in these activities as described in detail herein.” Compl. ¶ 103. Plaintiffs also claim that defendants intended to injure them. “Defendants’ participation in the foregoing scheme to defraud consumers demonstrates intentional and willful conduct by the defendants, in reckless disregard of the rights of and fiduciary duties owed to Class members.” Id. ¶ 203. Further, the Complaint includes allegations that each defendant committed acts in furtherance of the conspiracy. See, e.g., id. ¶¶ 42 (defendant Debt Solutions engaged in the marketing of DMPs), 44 (defendant Armstrong controlled, directed, commingled and intermingled funds from the DMPs). Finally, as stated previously, plaintiffs have alleged actual legal damage, as each plaintiff claims loss of some amount of money. See BMB Assocs., 1994 WL 314330, at *7 (defining “actual legal damage” as loss of money). Simply because plaintiffs did not have a fiduciary relationship with the other defendants — Debt Solutions, FCCC-2, JRA Property, Top Financial Sales, Consumer Financial, Vegga, Gelman, and Armstrong — does not mean that those defendants cannot be held liable for breach of fiduciary duty under a civil conspiracy theory. See Daniel Boone, 187 F.Supp.2d at 411. Thus, the Court rejects defendants argument that plaintiffs have not asserted a claim against defendants Debt Solutions, FCCC-2, JRA Property, Top Financial Sales, Consumer Financial, Veg-ga, Gelman, and Armstrong for breach of fiduciary duty. In the alternative, although not pleaded, plaintiffs may attempt to prove that the other defendants aided and abetted defendants FCCC and CDME in breaching their fiduciary duty to plaintiffs. The elements of a claim of aiding and abetting breach of fiduciary duty under Pennsylvania law are: (1) a breach of fiduciary duty owed to another; (2) knowledge of the breach by the aider and abettor; and, (3) substantial assistance or encouragement by the aider and abettor in effecting that breach. Pierce v. Rossetta Corp., 1992 WL 165817, at *8 (E.D.Pa. June" }, { "docid": "1642034", "title": "", "text": "a breach of the duty of good faith because it was an intentional act with a purpose other than advancing the best interests of the corporation, and it was an intentional failure to act in the face of a known duty to act. Both, if proven true, constitute breaches of the duty of good faith. In re Walt Disney Co. Derivative Litig., 906 A.2d at 67; See Miller v. Greystone, 418 B.R. 533, 546 (Bankr. D.Del.2009). Additionally, the Trustee alleges that the Defendants’ actions required Direct Response to take on large amounts of debt without fair consideration or reasonably equivalent value. Am. Compl. ¶ 108-09. Finally, on December 15, 2009, Direct Response’s counsel Edwards, An-gelí, who also served as counsel to Seaport, OTMH, and Innovation, informed Direct Response that it could no longer serve as its counsel, indicating that the interests of the four clients were adverse. Id. at ¶ 204. These additional facts, which if taken as true, form the basis of a claim for breach of the duty of good faith because they state a plausible claim that the Defendants intentionally acted with a purpose other than advancing the best interests of the corporation or failed to act where there was a known duty to act. Therefore, the Defendants’ Motions to Dismiss with respect to the post-limitations breach of fiduciary duty claims are denied. D. Aiding and Abetting Claim The Trustee asserts in the Amended Complaint that the Defendants, including Innovation, knowingly aided and abetted one another in breaches of fiduciary duty to the Debtor by encouraging, participating, and approving the Challenged Transactions, causing damage to the estate. The Trustee bases the aiding and abetting charges on the claims that the Defendants breached fiduciary duties to the Debtor and its creditors. In response, the Defendants argue that they did not owe or breach any duty to the Debtors. To establish an aiding and abetting claim under Delaware law, a plaintiff must demonstrate: “(1) the existence of a fiduciary relationship; (2) a breach of a fiduciary duty; (3) knowing participation in the breach by a defendant who is not" }, { "docid": "21801093", "title": "", "text": "Lewis Oil aided and abetted breaches of fiduciary duties. As the Sixth Circuit has previously held, Kentucky law “recognizes a claim for aiding and abetting tortious conduct, which covers fiduciary-breach claims.” Miles Farm Supply, LLC v. Helena Chem. Co., 595 F.3d 663, 666 (6th Cir. 2010) (citing Steelvest, Inc. v. Scansteel Serv. Ctr., Inc., 807 S.W.2d 476, 485 (Ky. 1991)). See also Anderson v. Pine S. Capital, LLC, 177 F.Supp.2d 591, 604 (W.D. Ky. 2001) (“One may be held liable to an injured plaintiff for aiding and abetting a breach of a fiduciary duty.” (citation omitted)). To prevail on this claim, Plaintiffs must show: (1) the existence and breach of a fiduciary duty; (2) the defendant gave the breaching party “substantial assistance or encouragement” in effectuating the breach; and (3) the defendant knew that the party’s conduct breached that fiduciary duty. Miles Farm Supply, LLC, 595 F.3d at 666 (citations omitted). Defendant contends that Plaintiffs’ aiding and abetted breaches of fiduciary duty claim cannot survive because “the proof in the case at bar to date does not support any of the prongs in this test as having been met ....” (Def.’s Mot. Summ. J. 22, DN 207). Specifically, Defendant asserts that there is no evidence of substantial assistance or actual knowledge on its part. (Def.’s Mot. Summ. J. 22). i. Existence and Breach of a Fiduciary Duty First, Lewis Oil contends that it could not have breached any duty to Plaintiffs because it did not owe any such duty. (Def.’s Reply 8 (citing Fastenal Co. v, Crawford, 609 F.Supp.2d 650 (E.D. Ky. 2009))). Plaintiffs, however, are not claiming a breach of fiduciary duty owed to them by Lewis Oil, but are asserting that Lewis Oil aided and abetted a breach of a fiduciary duty by other parties. An examination of the elements for aiding and abetting breach of a fiduciary duty demonstrate that it is not Lewis Oil who must owe and breach a fiduciary duty. The test only requires that Lewis Oil gave the party who did breach a fiduciary duty “substantial assistance” with knowledge that the party’s conduct" }, { "docid": "21173602", "title": "", "text": "A.2d at 113. Berkshire and Trickey also argue that the Trustee failed to plead that the alleged breach of fiduciary duty by them caused any damage. Krim v. ProNet, Inc., 744 A.2d 523, 529 n. 20 (Del.Ch.1999) (explaining that a plaintiff pleading a claim against corporate fiduciaries for breach of the duty of disclosure must “plead causation and identify actual quantifiable damages ... if plaintiff seeks more than nominal damages.”) citing O’Reilly v. Transworld Healthcare, Inc., 745 A.2d 902, 917-18 (Del.Ch.1999). This case is factually distinct from the cases cited by Berkshire and Trickey, however, because the Trustee does not allege a breach of fiduciary duty for failure to disclose. See Krim, 744 A.2d at 528-29 (involving breach of corporate directors’ duty to disclose certain information when seeking stockholder action); O’Reilly, 745 A.2d at 917-18 (same). Nonetheless, the allegations in the Trustee’s Complaint do support his claim that the alleged deterioration in value of the I/O Strips, increased delinquency rates, and elimination of cash flow resulting from Ocwen’s alleged failure to service the assets properly were damages caused by Trickey’s failure to protect the interests of the estate through oversight of Ocwen’s servicing activities. (Complaint at ¶ 74-76.) Therefore, the Court concludes that the Trustee has stated a claim against Berkshire and Trickey for breach of fiduciary duty. Consequently, the Court will not dismiss this count. 2. Aiding and Abetting a Breach of Fiduciary Duty Berkshire and Trickey move for dismissal of the aiding and abetting a breach of fiduciary duty claim asserting that the Trustee has failed to allege that any of the other Defendants owed the Trustee or the Debtor a fiduciary duty. The Court rejects this argument because, as noted in the Opinions regarding the Motions to dismiss filed by Greenwich and Ocwen, the Court concludes that the Trustee has stated a claim for breach of fiduciary duty against Greenwich though not against Ocwen. Berkshire and Trickey also seek dismissal contending that the Trustee has not alleged knowing participation in the breach on the part of Berkshire and Trick-ey. A proper pleading of aiding and abetting a" }, { "docid": "1712142", "title": "", "text": "SCAC, Plaintiffs had a direct relationship with the Citco Defendants, which included communicating with them before investing in the form of Placement Memos that featured, with permission from the Citco Defendants, their names, duties, and NAV calculations. Further, Plaintiffs allege that the Citco Defendants accepted money from Plaintiffs, sent investment confirmations to Plaintiffs, and calculated the NAV on which Plaintiffs relied. (See id. ¶¶327, 328, 333, 342, 488-91.) These factual allegations, among others, support a plausible claim that Plaintiffs reposed their trust in the Citco Defendants and the Citco Defendants accepted this entrustment. See Thermal Imaging, Inc., 158 F.Supp.2d at 343; see also Musalli Factory for Gold & Jewellry, 261 F.R.D. at 26 (“New York courts generally avoid dismissing a claim of breach of fiduciary duty ... because it usually involves a question of fact____”). Plaintiffs fail, however, to allege that either Citco Group or CFSB actually breached their fiduciary duty to the Plaintiffs. The SCAC contains allegations pertaining only to the Administrators’ and Custodians’ alleged breach. (See SCAC ¶¶ 495-96.) Accordingly, the Court denies the Citco Defendants’ motion to dismiss Plaintiffs’ breach of fiduciary duty claim as to the Administrators and Custodians, and grants the Citco Defendants’ motion with respect to Citco Group and CFSB. f. Aiding and Abetting Breach of Fiduciary Duty and Fraud The Citco Defendants contend that all of the aiding and abetting claims against them must be dismissed because Plaintiffs fail to allege that each Citco Defendant had actual knowledge of the fraud and breach of fiduciary duty allegedly committed by the Funds. Plaintiffs disagree, and assert that the SCAC alleges specific facts showing actual knowledge. The Court finds that Plaintiffs plead a strong inference of actual knowledge sufficient to state a claim for aiding and abetting breach of fiduciary duty and aiding and abetting fraud. To state a claim for aiding and abetting a breach of fiduciary duty, a plaintiff must show: “(1) breach of fiduciary obligations to another of which the aider and abettor had actual knowledge; (2) the defendant knowingly induced or participated in the breach; and (3) plaintiff suffered actual damages" }, { "docid": "19089025", "title": "", "text": "the reach of Keene’s creditors_”)). Under New York law, a non-transferee may not be held liable for a fraudulent transfer unless it has dominion and control over the transferred assets or unless it benefits in some way from the conveyance. See FDIC v. Porco, 75 N.Y.2d 840, 552 N.Y.S.2d 910, 911-12, 552 N.E.2d 158, 159-60 (Ct.App.1990). Plaintiffs do not allege that the professional defendants, clearly non-transferees in this ease, exercised dominion and control over the transferred assets nor do they allege that the professional defendants benefitted from the conveyances at issue. Therefore, the professional defendants are not liable as aiders and abettors for the alleged fraudulent transfers. Nowhere in their opposition do plaintiffs discuss or even cite Porco, which is disposi-tive of this issue. The eases cited by plaintiffs to support the contention that the fraudulent conveyance claim can give rise to an aiding and abetting breach of fiduciary duty claim are inapposite. (See Pls. Opp. at 108 n. 7). Accordingly, the aiding and abetting breach of fiduciary duty claim against the professional defendants is dismissed for this reason as well. C. RICO 1. Standing Plaintiffs do not allege a different set of facts in support of the aiding and abetting a RICO violation claim than the facts they allege to support their aiding and abetting breach of fiduciary duty claim. Thus, for the reasons discussed above, the Trust also lacks standing to assert this claim. Hirsch v. Arthur Andersen & Co., 72 F.3d 1085 (2d Cir.1995) provides direct support for this conclusion. In Hirsch, the district court dismissed, inter alia, a bankruptcy trustee’s RICO claim, predicated on mail fraud, against the bankrupt’s former attorneys and accountants for lack of standing. The district court reasoned that the claims belonged to individual creditors, not the estate. The Second Circuit affirmed, holding that: (1) to the extent the RICO claims were premised upon distributing misleading information to investor creditors, the claims could only be asserted by such investors; and (2) to the extent the RICO claims were premised upon the theory that the bankrupt suffered injuries, the claims could not be asserted" }, { "docid": "6759168", "title": "", "text": "contrary, Serwinski took steps to attempt to prevent that violation, insofar as her position allowed. Similarly, the Court is not persuaded that Ferber intended to further any violation of the CEA or took any act in furtherance of the objective. Plaintiffs emphasize that MF Global’s internal audit department, which Ferber headed, repeatedly warned about the deficiencies in the company’s risk management and internal controls. (Pis.’ Omnibus D & 0 Opp’n at 26.) This observation cuts against Plaintiffs’ claims—that Ferber attempted to prevent internal controls from failing suggests that she did not assist MFGI’s violation of the CEA. While Plaintiffs allege that Ferber was involved in some meetings and other communications with regulators about segregation of customer funds (Pis.’ Omnibus D & 0 Opp’n at 28-29), nothing about those communications plausibly suggests that Ferber participated in the illegal transfer of funds from customer accounts or intended for that result to occur. The Court thus grants the motion to dismiss Count Two with respect to defendants Serwinski and Ferber and denies the motion as to the remaining D & 0 Defendants. 2. Common Law Claims Counts Three through Twelve of the CAC state common law claims against the D & O Defendants. Plaintiffs allege that all of the D & O Defendants are liable for breach of fiduciary duty (Counts Three, Five, and Eleven); aiding and abetting breaches of fiduciary duty (Count Four); negligence (Counts Six and Seven); tortious interference with contract and business advantage (Count Eight); and aiding and abetting a breach of bailment (Count Twelve). Plaintiffs additionally bring claims against Corzine and O’Brien for conversion (Count Nine) and aiding and abetting conversion (Count Ten). a. Choice of Law The parties agree that New York law applies to Counts Four, Six, Seven, Eight, Nine, Ten, and Twelve. But they dispute which state’s law applies to Plaintiffs’ breach of fiduciary duty claims (Counts Three, Five, and Eleven). The D & 0 Defendants claim that the internal affairs doctrine requires the Court to apply the law of Delaware, where MFGI was incorporated. (D & 0 Defs.’ Joint Mem. at 32 n. 35; D" }, { "docid": "19200600", "title": "", "text": "attempt to establish this relationship of trust through conclusory statements by calling Presidio a “confidential tax advisor” and stating that they and Presidio “had a confidential relationship as a financial advisor.” (See Am. Compl. ¶¶ 24, 149.) These vague allegations fall well short of adequately pleading that a fiduciary relationship existed between Plaintiffs and Presidio. Without such a fiduciary relationship, Presidio cannot have breached a fiduciary duty. Accordingly, Plaintiffs’ claim against Presidio for breach of fiduciary duty is dismissed. E. Aiding and Abetting Breach of Fiduciary Duties Plaintiffs bring a claim of aiding and abetting breach of fiduciary duty against all Defendants. Plaintiffs allege that each Defendant was aware that KPMG and Brown & Wood owed fiduciary duties to Plaintiffs and were violating those duties by selling Plaintiffs the tax strategies. (See Am. Compl. ¶ 154.) Further, Plaintiff claims that Defendants substantially assisted the violation of those duties, and that Plaintiffs suffered “substantial damages.” (Id.) Under New York law, there are three elements to a claim for aiding and abetting breach of fiduciary duty: (1) a breach of fiduciary obligations to another of which the aider and abettor had actual knowledge; (2) the defendant knowingly induced or participated in the breach; and (3) plaintiff suffered actual damages as a result of the breach. In re Sharp Int’l. Corp., 403 F.3d 43, 49 (2d Cir.2005) (internal citations and quotations omitted). As to the knowledge requirement, “a person knowingly participates in a breach of fiduciary duty only when he or she provides ‘substantial assistance’ to the primary violator.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 294 (2d Cir.2006) (citation and quotation omitted). Further, “[a]iding and abetting liability arises only when plaintiffs’ injury was ‘a direct or reasonably foreseeable result’ of the complained-of conduct.” Kolbeck v. LIT Am., Inc., 939 F.Supp. 240, 249 (S.D.N.Y.1996) (quoting Morin v. Trupin, 711 F.Supp. 97, 112 (S.D.N.Y.1989)). The Court has already dismissed Plaintiffs’ claim against Presidio for breach of fiduciary duty, and Plaintiffs claim no breach of fiduciary duty by Deutsche Bank or HVB, so the aiding and abetting claim must be tied to allegations of" }, { "docid": "22811963", "title": "", "text": "which might have well induced a prudent banker to investigate and other permutations of negligence are not relevant considerations.” Getty Petroleum, 90 N.Y.2d at 331, 683 N.E.2d at 316, 660 N.Y.S.2d at 694-95. Because the plaintiffs fail to plead facts giving rise to the “strong inference” of actual knowledge of fraud required by Federal Rule of Civil Procedure 9(b), we affirm the district court’s dismissal of their claim for commercial bad faith. Cf. Nigerian Nat’l Petroleum Corp. v. Citibank, N.A., No. 98-4960, 1999 WL 558141, at *8, 1994 U.S. Dist. LEXIS 11599, *22 (S.D.N.Y. July 30, 1999) (citing Getty and granting Rule 12(b)(6) motion to dismiss claim of commercial bad faith for failure to plead adequately defendant’s actual knowledge of fraud). V. Aiding and Abetting Breach of Fiduciary Duty As already noted, a bank generally has “no duty to monitor fiduciary accounts maintained at its branches in order to safeguard funds in those accounts from fiduciary misappropriation.” Norwest Mortgage, 280 A.D.2d at 654, 721 N.Y.S.2d at 95. Some of the plaintiffs here have nonetheless stated claims against some of the defendant banks for aiding and abetting Schick’s breach of fiduciary duty. “A claim for aiding and abetting a breach of fiduciary duty requires: (1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach.” Kaufman, 307 A.D.2d at 125, 760 N.Y.S.2d at 169; accord In re Sharp Int’l Corp., 403 F.3d 43, 49 (2d Cir.2005); see also Wechsler v. Bowman, 285 N.Y. 284, 291, 34 N.E.2d 322, 326 (1941) (“Any one who knowingly participates with a fiduciary in a breach of trust is liable for the full amount of the damage caused thereby to the cestuis que trust.”). With respect to the second requirement, “[although a plaintiff is not required to allege that the aider and abettor had an intent to harm, there must be an allegation that such defendant had actual knowledge of the breach of duty.” Kaufman, 307 A.D.2d at 125, 760 N.Y.S.2d at 169. And" }, { "docid": "6969764", "title": "", "text": "Court will enter judgment in favor of the Defendants on Count 16 of the Third Amended Complaint. D. Aiding and Abetting Breach of Fiduciary Duty For each of the counts alleging a breach of fiduciary duty, the Trustee contends that other Defendants aided and abetted that breach. Any person or entity who knowingly participates in a breach of fiduciary duty is liable for aiding and abetting the breach. Broadstripe, 444 B.R. at 107. Under Delaware law, a claim that a defendant aided and abetted a breach of fiduciary duty requires proof of the following: (1) the existence of a fiduciary relationship, (2) breach of a fiduciary duty, (3) knowing participation in the breach, and (4) damages proximately caused by the breach. Id. The plaintiff “must demonstrate that the party knew that the other’s conduct constituted a breach of a fiduciary duty and gave substantial. assistance or encouragement to the other in committing that breach.” Id. Because the Court concludes that there was no breach of any fiduciary duty owed to the Debtor, no aiding and abetting claim can be upheld. In re Alloy, Inc. S’holder Litig., C.A. No. 5626-VCP, 2011 WL 4863716, at *14 (Del.Ch. Oct. 13, 2011) (holding that a predicate breach of fiduciary duty is an element of an aiding and abetting claim) (citing Malpiede v. Townson, 780 A.2d 1075, 1096 (Del.2001)). Therefore, the Court will enter judgment in favor of the Defendants bn Counts 3, 5, 7, 13, 15, and 17 of the Third Amended Complaint as well. E. Successor Liability At the end of January, 2009, the Trusts formed Opus Holding, LLC (“Holding LLC”), with Campa executing the Certificate of Formation. (JPTO at § IV, ¶ 40; Exs. P-486 & P-1083; Tr. 12/19/13 at 182.) The Trustee alleges that all the assets of LLC were acquired by Holding LLC or its wholly owned subsidiaries, Opus 2 LLC and Opus Design Build LLC (collectively, the “LLC Successors”). (Adv. D.I. 160 at ¶ 516.) Similarly, the Trusts formed Opus Holding, Inc. (“Holding Inc.”), on April 9, 2009. (JPTO at § IV, ¶ 44.) The Trustee alleges that all" }, { "docid": "22811964", "title": "", "text": "claims against some of the defendant banks for aiding and abetting Schick’s breach of fiduciary duty. “A claim for aiding and abetting a breach of fiduciary duty requires: (1) a breach by a fiduciary of obligations to another, (2) that the defendant knowingly induced or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach.” Kaufman, 307 A.D.2d at 125, 760 N.Y.S.2d at 169; accord In re Sharp Int’l Corp., 403 F.3d 43, 49 (2d Cir.2005); see also Wechsler v. Bowman, 285 N.Y. 284, 291, 34 N.E.2d 322, 326 (1941) (“Any one who knowingly participates with a fiduciary in a breach of trust is liable for the full amount of the damage caused thereby to the cestuis que trust.”). With respect to the second requirement, “[although a plaintiff is not required to allege that the aider and abettor had an intent to harm, there must be an allegation that such defendant had actual knowledge of the breach of duty.” Kaufman, 307 A.D.2d at 125, 760 N.Y.S.2d at 169. And “[a] person knowingly participates in a breach of fiduciary duty only when he or she provides ‘substantial assistance’ to the primary violator.” Id. at 126, 760 N.Y.S.2d at 170. The complaint alleges that “each defendant had actual knowledge that Schick and his law firms violated their fiduciary duties to some or all of the plaintiffs, inter alia, by reason of the fact that Schick Attorney Fiduciary Accounts were overdrawn; numerous checks written on Schick Attorney Fiduciary Accounts were dishonored for insufficient funds; and Schick on numerous occasions ... transferred funds from the Schick Attorney Fiduciary Accounts to his personal account(s).” Second Am. Compl. ¶ 303. As discussed above, these “red flags,” as alleged, were insufficient to establish a claim for aiding and abetting fraud because, although they may have put the banks on notice that some impropriety may have been taking place, those alleged facts do not create a strong inference of actual knowledge of Schick’s outright theft of client funds. But the claim for aiding and abetting a breach of fiduciary duty does not" }, { "docid": "19089024", "title": "", "text": "duty claim, therefore, is dismissed for lack of standing. 2. Aiding and Abetting a Fraudulent Conveyance Even assuming plaintiffs had standing to assert this claim against the professional defendants, the aiding and abetting a breach of fiduciary duty claim would also fail because there is no liability against non-transferees for a fraudulent conveyance in the circumstances of this ease, and plaintiffs’ aiding and abetting a breach of fiduciary duty claim is in fact an aiding and abetting a fraudulent conveyance claim. As plaintiffs allege in the very first sentence of their 119-page amended complaint: “This action is brought to remedy a series of textbook fraudulent conveyances the purpose and effect of which have been to place hundreds of millions of dollars in assets beyond the reach of Keene’s creditors.” (See also Pls. Opp. at 2 (The “purpose of this action is to undo [the purportedly fraudulent] transactions.”); Pis. Opp. at 5 (“the officers and directors of Keene, with the assistance of its lawyers and accountants, engaged in a scheme to place Keene’s assets out of the reach of Keene’s creditors_”)). Under New York law, a non-transferee may not be held liable for a fraudulent transfer unless it has dominion and control over the transferred assets or unless it benefits in some way from the conveyance. See FDIC v. Porco, 75 N.Y.2d 840, 552 N.Y.S.2d 910, 911-12, 552 N.E.2d 158, 159-60 (Ct.App.1990). Plaintiffs do not allege that the professional defendants, clearly non-transferees in this ease, exercised dominion and control over the transferred assets nor do they allege that the professional defendants benefitted from the conveyances at issue. Therefore, the professional defendants are not liable as aiders and abettors for the alleged fraudulent transfers. Nowhere in their opposition do plaintiffs discuss or even cite Porco, which is disposi-tive of this issue. The eases cited by plaintiffs to support the contention that the fraudulent conveyance claim can give rise to an aiding and abetting breach of fiduciary duty claim are inapposite. (See Pls. Opp. at 108 n. 7). Accordingly, the aiding and abetting breach of fiduciary duty claim against the professional defendants is" }, { "docid": "1732721", "title": "", "text": "to grant plaintiffs an accounting or to hear plaintiffs’ claims for conversion and breach of fiduciary duty. IV. Plaintiffs’ breach of fiduciary duty allegations rest on the assumption that as counsel to Belle, the trustee, Warren owed a fiduciary duty not just to Belle, his client, but to all beneficiaries of the trust. In their opposition to defendant’s motion to dismiss, plaintiffs refer to the trust indenture attached as an exhibit to the complaint, which includes a provision that authorizes the trustee to hire counsel and pay him out of the trust. (Pl.Br. at 29) In In re Clarke’s Estate, 12 N.Y.2d 183, 237 N.Y.S.2d 694, 188 N.E.2d 128 (1962), where an attorney’s fees were disallowed in an accounting of an estate because the attorney had a conflict of interest with the beneficiaries of the estate, the Court of Appeals held that: “[a]n attorney for a fiduciary has the same duty of undivided loyalty to the cestui as the fiduciary himself.” Id., 12 N.Y.2d at 187, 237 N.Y.S.2d at 697, 188 N.E.2d at 130; see also In re Bond & Mortg. Guarantee Co., 303 N.Y. 423, 103 N.E.2d 721 (1952) (“by reason of their status as attorneys .for the trustee, [they] were no less fiduciaries than was the trustee himself.”) By alleging that Warren acted as attorney for the trustee and that he violated his fiduciary duty to the beneficiaries, plaintiffs have stated a cause of action against Warren individually for breach of fiduciary duty. Plaintiffs argue also that Warren is liable for breach of fiduciary duty for having aided and abetted Belle in her alleged breach of fiduciary duty. To state a claim for aiding and abetting a fiduciary, plaintiffs must show inter alia that defendant acted in furtherance of his own self-interest. See Feinberg Testamentary Trust v. Carter, 652 F.Supp. 1066, 1082 (S.D.N.Y.1987). Most of plaintiffs’ claims allege that money allegedly diverted from the trust corpus went to Belle, not to Warren. Plaintiffs claim that Belle gave Warren $1 million in 1987 through 1989, but defendant argues that the alleged breaches and alleged benefit are not sufficiently close" } ]

[ { "docid": "19347581", "title": "", "text": "See also 620 F.3d at 304. The reasoning in Smith depended on the proposition that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” 442 U.S. at 743-44, 99 S.Ct. 2577. The Third Circuit went on to observe that “a cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.” That circuit further noted that “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information.” 620 F.3d at 317 (emphasis added). Therefore, as the Third Circuit concluded, “when a cell phone user makes a call, the only information that is voluntarily and knowingly conveyed to the phone company is the number that is dialed, and there is no indication to the user that making that call will also locate the caller.” Id. Even more persuasively, “when a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.” Id. at 317-18. Supportive of this proposition is the argument made by the United States to the jury. The prosecutor stated to the jury “that obviously Willie Smith, like [Davis], probably had no idea that by bringing their cell phones with them to these robberies, they were allowing [their cell service provider] and now all of you to follow their movements on the days and at the times of the robberies.... ” Just so. Davis has not voluntarily disclosed his cell site location information to the provider in such a fashion as to lose his reasonable expectation of privacy. In short, we hold that cell site location information is within the subscriber’s reasonable expectation of privacy. The obtaining of that data without a warrant is a Fourth Amendment violation. Nonetheless, for reasons set forth in the next section of this opinion, we do not conclude that the district court committed a reversible error. II. The Leon Exception The United States contends that even if we conclude, as we have, that the gathering of the cell site location data without a warrant violated the constitutional" } ]

[ { "docid": "20585536", "title": "", "text": "that information (historical CSLI) pursuant to § 2703(d) orders, rather than warrants, did not violate the Fourth Amendment. Three other federal appellate courts have considered the Fourth Amendment question before us. Not one has adopted the majority’s holding. Two of our sister courts have expressly held, as I would, that individuals do not have a reasonable expectation of privacy in historical CSLI records that the government obtains from cell phone service providers through a § 2703(d) order. See United States v. Davis, 785 F.3d 498, 511 (11th Cir.2015) (en banc) (holding defendant had no “objective[ly] reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls”); In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir.2013) (In re Application (Fifth Circuit)) (holding the government can use “[s]ection 2703(d) orders to obtain historical cell site information” without implicating the Fourth Amendment (emphasis omitted)). And although the third court opined that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way,” it held that “CSLI from cell phone calls is obtainable under a § 2703(d) order,” which “does not require the traditional probable cause determination” necessary for a warrant. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313, 317 (3d Cir.2010) (In re Application (Third Circuit)). Even in the absence of binding circuit precedent, the vast majority of federal district court judges have reached the same conclusion. Given this near unanimity of federal authority, the majority is forced to rest its holding on three inapposite state cases and three district court opinions— including one that has been vacated, In re Application of U.S. for Historical Cell Site Data, 747 F.Supp.2d 827 (S.D.Tex.2010), vacated, 724 F.3d 600 (5th Cir.2013), and another that involves only prospective and real-time CSLI, In re Application of U.S. for an Order Authorizing Disclosure of Location Info, of a Specified Wireless Tel., 849 F.Supp.2d 526, 535 & n. 4 (D.Md. 2011). In" }, { "docid": "110406", "title": "", "text": "be \"in trouble,” and his statements may be used against him. . In Giddins’s (withdrawn) motion to suppress tangible and derivative evidence, Gid-dins also argues that 18 U.S.C. § 2703(c) does not, by its terms, authorize disclosure of cell site location data. ECF No. 18 ¶ 11. Thus, Giddins does not apparently argue that § 2703(c) is facially unconstitutional, but that, as applied here, Giddins's Fourth Amendment rights were violated when the government used § 2703(c) to obtain his cell site location data without a warrant. . Graham is on appeal to the Fourth Circuit, where it has been pending for almost two years. See United States v. Herevia, No. RDB-13-639, 2014 WL 4784321, at *8 n. 8 (D.Md. September 23, 2014). . Cf. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov't, 620 F.3d 304, 317 (3d Cir.2010) (overturning magistrate judge’s denial of a § 2703(d) court order but stating that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way” and that \"it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information”). . See, e.g., In re U.S. for an Order Authorizing the Release of Historical Cell-Site Info., 809 F.Supp.2d 113, 126-27 (E.D.N.Y.2011) (finding that the collection of cell site location data implicated the Fourth Amendment and denying government’s application for a court order under § 2703(d) because it lacked probable cause). . But see Graham, 846 F.Supp.2d at 403 (noting that the GPS surveillance in Jones was conducted without a warrant). Graham quoted from Justice Sotomayor’s concurring opinion in Jones: \"I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool [GPS tracking] so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power and prevent a too permeating police surveillance.” Graham, 846 F.Supp.2d at 403 (quoting Jones, 132 S.Ct. at 956 (Soto-mayor, J., concurring) (internal quotation" }, { "docid": "5880196", "title": "", "text": "a search under the Fourth Amendment because (1) subscribers have an expectation of privacy in CSLI, and (2) subscribers do not “voluntarily” share CSLI information with third-party service providers. Id. at 1215-17. Law enforcement must therefore establish probable cause and obtain a warrant to track a suspect’s location using CSLI. Id. at 1217. Although the Tenth Circuit has not decided whether § 2703(d)’s “reasonable grounds” standard is constitutional, the Court concludes that the Tenth Circuit would not adopt the reasoning in Davis. The Eleventh Circuit’s recent order vacating the decision to rehear the case en banc shows that the soundness of Davis’s holding is subject to question within even that circuit. See United States v. Davis, 573 Fed.Appx. 925 (11th Cir.2014). Instead, to determine the constitutionality of § 2703’s “reasonable ground standard,” the Court follows the Fifth Circuit’s analysis in In re United States for Historical Cell Site Data, 724 F.3d 600, 602 (5th Cir.2013) (hereinafter “Cell Site Data”). In that case, the Fifth Circuit held that the government’s acquisition of CSLI is not a search under the Fourth Amendment, and thus the Fourth Amendment’s probable cause requirement does not apply to it. Id. at 615. Significantly, the Fifth Circuit decided Cell Site Data after the Supreme Court had decided Jones. The Fifth Circuit distinguished Jones because, with CSLI, law enforcement is not the party collecting the data. Id. at 610. “[W]hen determining whether an intrusion constitutes a search or seizure,” courts should distinguish “whether it is the Government collecting the information or requiring a third party to collect and store it, or whether it is a third party, of its own accord and for its own purposes, recording the information.” Id. at 610. The government does not mandate that cellular service providers store CSLI and service providers may store or discard such data at their own discretion. Id. at 612. “And once an individual exposes his information to a third party, it can be used for any purpose, as ‘[i]t is established that, when a person communicates information to a third party even on the understanding that the communication" }, { "docid": "4865747", "title": "", "text": "historical cell site location records are records created and kept by third parties that are voluntarily conveyed to those third parties by their customers. As part of the ordinary course of business, cellular phone companies collect information that identifies ' the cellular towers through which a person’s calls are routed. Some courts have concluded that a cellular customer does not “voluntarily” convey this information to his cellular provider on the ground that cellular phone users are ignorant of how a cellular phone operates. See, e.g., In re Application of the United States, 620 F.3d 304, 317 (3d Cir.2010) (“it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location informa tion”). However, the Supreme Court’s statement in Smith that “[a]ll telephone users realize that they must ‘convey’ phone numbers to the telephone company, since it is through the telephone company’s switching equipment that their calls are completed ... [a]ll subscribers realize, moreover, that the phone company has facilities for making permanent records of the numbers they dial[,]” cautions against any assumption of ignorance on the part of cellular customers. Additionally, any assumption of ignorance is belied by Sprint/Nextel, Inc.’s privacy policy, which informs its customers that it collects location data. The Eastern District of New York, which ultimately concluded that historical cell site records are subject to a legitimate expectation of privacy, found “unpersuasive” the Third Circuit’s finding that cellular customers are ignorant regarding the records kept by their providers. In re Application of the United States, 809 F.Supp.2d 113, 121 (E.D.N.Y.2011). More to the point, that court concluded that “[njothing in the case law ... supports the conclusion that any minor technical distinction between the dialing [of] a phone number and the conveyance of cell-site-location records on a cell phone is constitutionally significant.” Id. at 122. Instead, the court determined that while the third-party doctrine would ordinarily cover historical cell site location records, an exception to the third-party doctrine exists for “cumulative” records. Id. Relying on the mosaic theory of the Fourth Amendment created by the D.C. Circuit in Maynard, the" }, { "docid": "3495153", "title": "", "text": "his calls. The provider uses this data to properly route his call, while the person he is calling does not receive this information. In re U.S. for Historical Cell Site Data, 724 F.3d at 611-12 (internal quotation omitted). The Court agrees with this reasoning and follows the numerous courts that have held that an individual does not have a legitimate expectation of privacy in historical cell site information and thus the protections of the Fourth Amendment do not attach to it. See United States v. Guerrero, 768 F.3d 351, 360-61 (5th Cir.2014) (noting that historical cell site data is not governed by the Fourth Amendment); Rogers, 71 F.Supp.3d at 750, 2014 WL 5152543, at *4 (“Historic electronic location records fit squarely into the type of records the Supreme Court contemplated in Smith.”). See also United States v. Shah, No. 5:13-CR-328, 2015 WL 72118, at *7 (E.D.N.C. Jan. 6, 2015) (finding that historical cell site information “is not protected by the Fourth Amendment”); United States v. Giddins, 57 F.Supp.3d at 494, 2014 WL 4955472, at *10 (D.Md. Sept. 30, 2014) (the defendant’s “Fourth Amendment rights were not violated when the government obtained his cell site location data pursuant to a court order under 2703(d)”); United States v. Banks, No. 13-CR-40060-DDC, 52 F.Supp.3d 1201, 1206, 2014 WL 4594197, at *4 (D.Kan. Sept. 15, 2014) (“Because the defendants voluntarily conveyed CSLI to service providers as part of a business transaction, the statutory standard in 2703(d) governs and Fourth Amendment protections do not apply to their [cell site data]”). Cf. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317 (3d Cir.2010) (reversing magistrate judge’s denial of an order under Section 2703(d) yet noting that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way” and that “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information”). B. Jones Does Not Apply to the Facts Here United States v. Jones, —" }, { "docid": "15455900", "title": "", "text": "violate the Fourth Amendment. This holding accords with that of every other federal appellate court that has considered the Fourth Amendment question before us. Not one has adopted the Defendants’ theory. Three of our sister courts have expressly held, as we do today, that individuals do not have- a reasonable expectation of privacy in historical CSLI records that the government obtains from cell phone service providers through a § 2703(d) order. See United States v. Carpenter, 819 F.3d 880, 887-89 (6th Cir.2016) (holding that “for the same reasons that Smith had no expectation of privacy in the numerical information at issue [in Smith], the defendants have no such expectation in the [CSLI] locational information here”); United States v. Davis, 785 F.3d 498, 511-13 (11th Cir.) (en banc) (holding that defendant has no “objectively] reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wire-lessly connected his calls”), cert. denied, — U.S. -, 136 S.Ct. 479, 193 L.Ed.2d 349 (2015); In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir. 2013) (In re Application (Fifth Circuit)) (holding that the government can use “[s]ection 2703(d) orders to obtain historical cell site information” without implicating the Fourth Amendment (emphasis omitted)). And although the fourth of our sister courts opined that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way,” it held that “CSLI from cell phone calls is obtainable under a § 2703(d) order,” which “does not require the traditional probable cause determination” necessary for a warrant. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313, 317 (3d Cir. 2010) (In re Application (Third Circuit)). Moreover, even in the absence of binding circuit precedent, the vast majority of federal district court judges have reached the same conclusion. Defendants are forced to rely on four inapposite state eases that either interpret broader state constitutional provisions instead of the Fourth Amendment, or do not consider historical CSLI records, or both." }, { "docid": "3148423", "title": "", "text": "did not overturn In re Application of U.S. for Historical Cell Site Data). Although not explicitly addressing the issue of whether a search warrant is required for cell site information, the Seventh Circuit acknowledged the total lack of any federal appellate decision accepting the premise that obtaining cell-site data from telephone carriers raises a Fourth Amendment concern. See United States v. Thousand, 558 Fed.Appx. 666, 670 (7th Cir.2014); see also United States v. Skinner, 690 F.3d 772 (6th Cir.2012) (Holding that a criminal defendant does not have a reasonable expectation of privacy in cell phone location data as he traveled on public thoroughfares and therefore the collection of the data was not a search under the Fourth Amendment.). Historic electronic location records fit squarely into the type of records the Supreme Court contemplated in Smith. Whether the numbers were dialed by the phone in the context of a pen register in Smith or, as here, signals emitted from a phone to allow for its functionality, these •records are not an individual’s private effects and belong to the third party cellular providers. Therefore, an individual user has no reasonable expectation of privacy in the historic electronic location evidence detailing the proximity of a cellular phone to the cellular tower. Without a reasonable expectation of privacy, it is unnecessary for the government to obtain a search warrant. 2. The SCA Authorizes a Recovery of Electronic Location Evidence Defendants seem to contend the SCA does not authorize the disclosure of electronic location evidence. Intermixed throughout Defendants’ argument on the limited scope of information permitted to be disclosed under § 2703(d), Defendants consistently assert that electronic location evidence is protected by the Fourth Amendment. We have previously determined that Defendants do not have a reasonable expectation of privacy in historic electronic location evidence, and that a finding of probable cause for a search warrant is not necessary. Therefore, the Court will look to § 2703(c)(2) to determine if the SCA authorizes the collection of electronic location evidence. Section 2703(c)(2) allows for the disclosure of “a record or other informa tion pertaining to a subscriber" }, { "docid": "3495146", "title": "", "text": "historical cell site records “only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). In contrast, an application for a search warrant requires the government to establish probable cause, which is a higher standard. See In re Application of the United States Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313 (3d Cir.2010) (concluding that Section 2703(d) standard was “a lesser one than probable cause.”). In United States v. Rogers, No. 13 CR 952, 71 F.Supp.3d 745, 747-48, 2014 WL 5152543, at *2 (N.D.Ill. Oct. 9, 2014), Judge Kocoras recently thoroughly described historical cell site information. As Judge Kocoras explained: Wireless technology operates through a network of cellular towers that emit radio frequencies capable of carrying the human voice and other data. Cellular phones are able to be located in one of two ways: by cell-site tracking, or by Global Positioning System (“GPS”) signal tracking. Cell-site tracking relies on a cellular phones’ requirement that they be constantly connected to a mobile network. To facilitate a cellular phone’s connection to a mobile network, cellular phones are programmed to be constantly searching for the nearest cellular tower to ensure connection to the strongest signal. Once the phone selects the strongest signal, it transmits the user’s identifying data so that the subscriber’s network confirms the cell phone’s location to route any incoming calls. This constant search and submission of information occurs every few seconds. If the signal to a tower changes, or if a mobile phone moves, the mobile phone may switch its signal to a new tower. See Timothy Stapleton, Note, The Elec. Commc’ns Privacy Act and Cell Location Data, 73 Brook.L.Rev. 383, 387 (2007). Id. Here, the government seeks the historical cell site records to obtain the location of Subject Phone 3 during the period of May 1, 2013 through August 14, 2013. II. The Government Does" }, { "docid": "15455958", "title": "", "text": "... calls on their monthly bills.”). Consequently, “it is unlikely that cell phone’customers are aware that their cell phone providers collect and store [CSLI].” In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317 (3d Cir. 2010) (In re Application (Third Circuit)). And even if cell phone customers have a vague awareness that their location affects the number of “bars” on their phone, see ante, at 430, they surely do not know which cell phone tower their call will be routed through, a fact even the government concedes. Appellee’s Br. at 53 (“[T]he location of the cell phone tower handling a customer’s call is generated internally by the phone company and is not typically known by the customer.”). User knowledge, the first component of “voluntary conveyance,” is therefore essentially absent. Second, consider what the cell phone user does — or does not do — to transmit CSLI. As a general matter, “CSLI is purely a function and product of cellular telephone technology, created by the provider’s system network at the time that a cellular telephone call connects to a cell site.” Commonwealth v. Augustine, 4 N.E.3d 846, 862, 467 Mass. 230 (2014). In some instances, CSLI is produced when a user places an outgoing call, an action that arguably corresponds with the generated information (even if the user remains unaware of that information). However, CSLI is also generated when a phone simply receives a call, even if the user does not answer. In these instances, CSLI is automatically generated by the service provider’s network, without any user participation at all. See In re Application (Third Circuit), 620 F.3d at 317-18 (“[W]hen a cell phone user receives a call, he hasn’t voluntarily exposed anything at all.”). In sum, because a cell phone customer neither possesses knowledge of his CSLI nor acts to disclose it, I agree with the Third Circuit that he “has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way.” Id. at 317; accord Augustine, 4 N.E.3d at 862; Tracey" }, { "docid": "110392", "title": "", "text": "S.Ct. at 964) (Alito, J., concurring in the judgment). That is what Congress did when it enacted § 2703. Id, Some courts have held otherwise. The Eleventh Circuit recently held that the collection of cell site location data violated the defendant’s reasonable expectation of privacy. United States v. Davis, 754 F.3d 1205, 1215 (11th Cir.2014) (no reversible error, however, under the good faith exception recognized in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)). The Eleventh Circuit found instructive the U.S. Supreme Court’s opinion in Jones. In distinguishing Jones in favor of the defendant, the Court explained: One’s cell phone, unlike an automobile, can accompany its owner anywhere. Thus, the exposure of the cell site location information can convert what would otherwise be a private event into a public one. When one’s whereabouts are not public, then one may have a reasonable expectation of privacy in those whereabouts. Therefore, while it maybe the case that even in light of the Jones opinion, GPS location information on an automobile would be protected only in the case of aggregated data, even one point of cell site location data can be within a reasonable expectation of privacy- Davis, 754 F.3d at 1216. That opinion, however, has been vacated pending rehearing en banc. United States v. Davis, 573 Fed.Appx. 925 (4th Cir.2014). The Fourth Circuit has applied the business records/third-party doctrine to affirm the issuance of administrative subpoenas against a Fourth Amendment challenge. See United States v. Bynum, 604 F.3d 161 (4th Cir.2010). In Bynum, the FBI served Yahoo!, Inc. (“Yahoo”) an administrative subpoena requesting subscriber information entered into the Yahoo website and internet protocol (“IP”) addresses associated with uploads to the Yahoo website, 604 F.3d at 162-63. Using information provided by Yahoo, the FBI issued a subpoena to UUNET Technologies to obtain information on the customer associated with the IP address. Id. From there, the FBI subpoenaed records from telephone and internet companies operating the defendant’s dial-up internet service. Id. Those companies provided the FBI with the defendant’s name and physical address. Id. The Fourth Circuit held" }, { "docid": "3148420", "title": "", "text": "electronic evidence provided only a historical account of the Defendants’ whereabouts in relation to the location of the cell towers utilized by the individual’s cellular phones. A retroactive account of the Defendants’ whereabouts would nullify the Supreme Court’s concern over, the “long-term monitoring of the movements” of an individual and renders a comparison inapplicable. Jones, 132 U.S. at 958, 132 S.Ct. 945. In the Defendants’ Reply Brief, Defendants argue that the obtained electronic location evidence allowed the Government to contemporaneously track the Defendants’ activities. However Defendants’ factual assertion of “real time tracking” is not support by any evidence in the record. Absent any support in the record for Defendants’ position, the Court finds that the collection of electronic evidence utilized in the case at bar is distinguishable from the tracking at issue in Jones. Defendants further supports their position by pointing to the Eleventh Circuit’s holding in United States v. Davis, 754 F.3d 1205 (11th Cir.2014), which deemed electronic location evidence as personal effects that an individual has a reasonable privacy interest in. However, it is important to note that the Davis decision has been withdrawn, and a rehearing en banc has been granted. United States v. Davis, 12 CR 12928, 2014 WL 4358411, 573 Fed.Appx. 925 (11th Cir.2014). Thus the Davis opinion does not presently support or even offer persuasive authority for the Defendants’ arguments. Despite the historical nature of the electronic location evidence collected here, the way the records are created by third party telephone carriers in combination with their designed functionality does not elicit Fourth Amendment protection. Electronic location records are created, maintained and produced by third party telephone 'carriers in the course of their normal busi ness practices. See In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 612 (5th Cir.2013). The Supreme Court has consistently held that there is no Fourth Amendment privacy right in third party business records that are conveyed to the government. Prior to the utilization of mobile phones, the Supreme Court held that a person has no legitimate expectation of privacy in a phone company’s records of" }, { "docid": "3148422", "title": "", "text": "numbers dialed on a stationary telephone, and thus a defendant cannot invoke the Fourth Amendment when the police installed a pen register without a warrant. Smith v. Maryland, 442 U.S. 735, 745-46, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). As technology progressed and the emergence of cellular phones allowed third party cellular carriers to determine the location of phones in relation to their cell towers, court have followed Smith’s line of reasoning. The Fifth Circuit recently concluded that Supreme Court precedent “does not recognize a situation where a conventional order for a third party’s voluntarily created business records transforms into a Fourth Amendment search or seizure.” The Fifth Court rejected the argument that using a court order, available through the SCA, to collect historical cell tower data without a showing of probable cause is unconstitutional. In re Application of U.S. for Historical Cell Site Data, 724 F.3d at 614-15; see also United States v. Guerrero, 768 F.3d 351 (5th Cir.2014) (determining that Riley v. California, — U.S. -, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) did not overturn In re Application of U.S. for Historical Cell Site Data). Although not explicitly addressing the issue of whether a search warrant is required for cell site information, the Seventh Circuit acknowledged the total lack of any federal appellate decision accepting the premise that obtaining cell-site data from telephone carriers raises a Fourth Amendment concern. See United States v. Thousand, 558 Fed.Appx. 666, 670 (7th Cir.2014); see also United States v. Skinner, 690 F.3d 772 (6th Cir.2012) (Holding that a criminal defendant does not have a reasonable expectation of privacy in cell phone location data as he traveled on public thoroughfares and therefore the collection of the data was not a search under the Fourth Amendment.). Historic electronic location records fit squarely into the type of records the Supreme Court contemplated in Smith. Whether the numbers were dialed by the phone in the context of a pen register in Smith or, as here, signals emitted from a phone to allow for its functionality, these •records are not an individual’s private effects and belong" }, { "docid": "16639907", "title": "", "text": "for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 317 (3d Cir.2010) (distinguishing Smith on the ground that a “cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way”). It may be that the “technology is different” rationale that led the Riley Court to treat an arrestee’s cell phone differently from his wallet will one day lead the Court to treat historical cell site data in the possession of a cellphone provider differently from a pen register in the possession of a pay phone operator. See Riley, 134 S.Ct. at 2488 (“The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of these sorts of physical items. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” (citation omitted)). Indeed, at least one Justice has expressed skepticism that Smith should apply to modern technologies, United States v. Jones, — U.S. —, 132 S.Ct. 945, 957, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring) (“[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”), and Riley recognized those concerns, see 134 S.Ct. at 2490 (“Historic location information is a standard feature on many smart phones and can reconstruct someone’s specific movements down to the minute, not only around town but also within a particular building.” (citing Justice Sotomayor’s concurrence in Jones)). And commentators have debated the effect Riley may have if a “third party” case involving modern technology were to end up at the Court. Compare, e.g., Daniel Solove, The U.S. Supreme Court’s pth Amendment and Cell Phone Case and Its Implications for the Third Party Doctrine, Concurring Opinions (June 25, 2014) (“Although the case involves searches incident to arrest and not other areas of the Fourth Amendment, the Court recognizes some key points about privacy and technology that might harbinger a change in some other Supreme Court doctrines [such as the third" }, { "docid": "3148421", "title": "", "text": "is important to note that the Davis decision has been withdrawn, and a rehearing en banc has been granted. United States v. Davis, 12 CR 12928, 2014 WL 4358411, 573 Fed.Appx. 925 (11th Cir.2014). Thus the Davis opinion does not presently support or even offer persuasive authority for the Defendants’ arguments. Despite the historical nature of the electronic location evidence collected here, the way the records are created by third party telephone carriers in combination with their designed functionality does not elicit Fourth Amendment protection. Electronic location records are created, maintained and produced by third party telephone 'carriers in the course of their normal busi ness practices. See In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 612 (5th Cir.2013). The Supreme Court has consistently held that there is no Fourth Amendment privacy right in third party business records that are conveyed to the government. Prior to the utilization of mobile phones, the Supreme Court held that a person has no legitimate expectation of privacy in a phone company’s records of numbers dialed on a stationary telephone, and thus a defendant cannot invoke the Fourth Amendment when the police installed a pen register without a warrant. Smith v. Maryland, 442 U.S. 735, 745-46, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). As technology progressed and the emergence of cellular phones allowed third party cellular carriers to determine the location of phones in relation to their cell towers, court have followed Smith’s line of reasoning. The Fifth Circuit recently concluded that Supreme Court precedent “does not recognize a situation where a conventional order for a third party’s voluntarily created business records transforms into a Fourth Amendment search or seizure.” The Fifth Court rejected the argument that using a court order, available through the SCA, to collect historical cell tower data without a showing of probable cause is unconstitutional. In re Application of U.S. for Historical Cell Site Data, 724 F.3d at 614-15; see also United States v. Guerrero, 768 F.3d 351 (5th Cir.2014) (determining that Riley v. California, — U.S. -, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014)" }, { "docid": "15455901", "title": "", "text": "600, 615 (5th Cir. 2013) (In re Application (Fifth Circuit)) (holding that the government can use “[s]ection 2703(d) orders to obtain historical cell site information” without implicating the Fourth Amendment (emphasis omitted)). And although the fourth of our sister courts opined that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way,” it held that “CSLI from cell phone calls is obtainable under a § 2703(d) order,” which “does not require the traditional probable cause determination” necessary for a warrant. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313, 317 (3d Cir. 2010) (In re Application (Third Circuit)). Moreover, even in the absence of binding circuit precedent, the vast majority of federal district court judges have reached the same conclusion. Defendants are forced to rely on four inapposite state eases that either interpret broader state constitutional provisions instead of the Fourth Amendment, or do not consider historical CSLI records, or both. In sum, the Defendants’ preferred, holding lacks support from all relevant authority and would place us in conflict with the Supreme Court and every other federal appellate court to consider the question. II. Despite the lack of support for their position, Defendants insist that the third-party doctrine does not apply here. They argue that “[a] cell phone user does not even possess the CSLI to voluntarily convey,” and that even assuming users do convey such information, “revealing this information is compelled, not voluntary.” Defendants’ En Banc Br. at 10-11. These arguments misapprehend the nature of CSLI, improperly attempt to redefine the third-party doctrine, and rest on a long-rejected factual argument and the constitutional protection afforded a communication’s content. A. Defendants maintain that cell phone users do not convey CSLI to phone providers, voluntarily or otherwise. We reject ■ that contention. With respect to the nature of CSLI, there can be little question that cell phone users “convey” CSLI to their service providers. After all, if they do not, then who does? Perhaps Defendants believe that" }, { "docid": "3495145", "title": "", "text": "outgoing calls and text messages, for Subject Phone 3, for the period from May 1, 2013, through August 14, 2013. (R. 65, Application at 1.) ANALYSIS Defendant Lang objects to the government’s application for historical cell site information and historical toll record information for Subject Phone 3. Defendant contends that the government must obtain a search warrant to obtain the historical cell site information because he has a reasonable expectation of privacy in this information, thus the Fourth Amendment’s warrant requirement applies. In addition, Defendant argues that the government is not entitled to either the historical cell site information or the toll record information because the government has not established that there are reasonable grounds to believe that it is relevant and material to the ongoing criminal investigation. The Court will address each argument in turn after discussing the Stored Communications Act. I. Stored Communications Act The government seeks these records under the Stored Communications Act. 18 U.S.C. § 2703(d). The Stored Communications Act provides that a court may issue an order for disclpsure of historical cell site records “only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” 18 U.S.C. § 2703(d). In contrast, an application for a search warrant requires the government to establish probable cause, which is a higher standard. See In re Application of the United States Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 313 (3d Cir.2010) (concluding that Section 2703(d) standard was “a lesser one than probable cause.”). In United States v. Rogers, No. 13 CR 952, 71 F.Supp.3d 745, 747-48, 2014 WL 5152543, at *2 (N.D.Ill. Oct. 9, 2014), Judge Kocoras recently thoroughly described historical cell site information. As Judge Kocoras explained: Wireless technology operates through a network of cellular towers that emit radio frequencies capable of carrying the human voice and other data. Cellular phones are able to be located in one" }, { "docid": "3495154", "title": "", "text": "(D.Md. Sept. 30, 2014) (the defendant’s “Fourth Amendment rights were not violated when the government obtained his cell site location data pursuant to a court order under 2703(d)”); United States v. Banks, No. 13-CR-40060-DDC, 52 F.Supp.3d 1201, 1206, 2014 WL 4594197, at *4 (D.Kan. Sept. 15, 2014) (“Because the defendants voluntarily conveyed CSLI to service providers as part of a business transaction, the statutory standard in 2703(d) governs and Fourth Amendment protections do not apply to their [cell site data]”). Cf. In re Application of U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to Gov’t, 620 F.3d 304, 317 (3d Cir.2010) (reversing magistrate judge’s denial of an order under Section 2703(d) yet noting that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way” and that “it is unlikely that cell phone customers are aware that their cell phone providers collect and store historical location information”). B. Jones Does Not Apply to the Facts Here United States v. Jones, — U.S. -, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012), does not provide otherwise. In Jones, the Supreme Court held that attaching a GPS tracking device to a vehicle and subsequently monitoring the movement of the vehicle constituted a search under the Fourth Amendment. The Supreme Court found that the government had “physically occupied private property for the purpose of obtaining information” when it “trespas-sorily inserted the information-gathering device” onto the vehicle. Id. at 950, 952. Jones did not rely upon the Smith third party doctrine, “let alone purport to desert or limit it.” United States v. Wheelock, 772 F.3d 825, 829 (8th Cir.2014). Instead, it relied on the government’s trespass into the vehicle where the defendant had an expectation of privacy. While one concurring opinion noted that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties” because of the “digital age,” the concurrence did not abrogate the third party doctrine. Jones, 132 S.Ct. at 957 (Sotomayor, J., concurring). See also" }, { "docid": "20585535", "title": "", "text": "phone company by “‘expos[ing]’ that information to” the phone company’s “equipment in the ordinary course of business.” Id. at 744, 99 S.Ct. 2577. The defendant thereby “assumed the risk that the company would reveal to police the numbers he dialed.” Id. Here, as in Smith, Defendants unquestionably “exposed” the information at issue to the phone company’s “equipment in the ordinary course of business.” Id. Each time Defendants made or received a call, or sent or received a text message- — activities well within the “ordinary course” of cell phone ownership — Sprint/Nextel generated a record of the cell towers used. The CSLI that Sprint/Nexel recorded was necessary to route Defendants’ cell phone calls and texts, just as the dialed numbers recorded by the pen register in Smith were necessary to route the defendant’s landline calls. Having “exposed” the CSLI to Sprint/Nextel, Defendants here, like the defendant in Smith, “assumed the risk” that the phone company would disclose their information to the government. Id. at 744, 99 S.Ct. 2577. For these reasons, the government’s acquisition of that information (historical CSLI) pursuant to § 2703(d) orders, rather than warrants, did not violate the Fourth Amendment. Three other federal appellate courts have considered the Fourth Amendment question before us. Not one has adopted the majority’s holding. Two of our sister courts have expressly held, as I would, that individuals do not have a reasonable expectation of privacy in historical CSLI records that the government obtains from cell phone service providers through a § 2703(d) order. See United States v. Davis, 785 F.3d 498, 511 (11th Cir.2015) (en banc) (holding defendant had no “objective[ly] reasonable expectation of privacy in MetroPCS’s business records showing the cell tower locations that wirelessly connected his calls”); In re Application of U.S. for Historical Cell Site Data, 724 F.3d 600, 615 (5th Cir.2013) (In re Application (Fifth Circuit)) (holding the government can use “[s]ection 2703(d) orders to obtain historical cell site information” without implicating the Fourth Amendment (emphasis omitted)). And although the third court opined that “[a] cell phone customer has not ‘voluntarily’ shared his location information with a" }, { "docid": "16639905", "title": "", "text": "U.S. 218, 236, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (“Having in the course of a lawful search come upon the crumpled package of cigarettes, [the officer] was entitled to inspect it____”); Riley, 134 S.Ct. at 2484-85 (declining to extend Robinson “to searches of data on cell phones” because a “search of the information on a cell phone bears little resemblance to the type of brief physical search considered in Robinson ”). Historical Cell Site involves the different question of whether a cell phone owner has a reasonable expectation of privacy in information held by a “third party” service provider. The Supreme Court recognized in Riley that these are different issues when it distinguished the seminal “third party” doctrine decision in Smith: The Government relies on Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), which held that no warrant was required to use a pen register at telephone company premises to identify numbers dialed by a particular caller. The Court in that case, however, concluded that the use of a pen register was not a “search” at all under the Fourth Amendment. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case. Id. at 2492-93 (internal citations omitted). This is not to say that the Supreme Court may not reconsider the third party doctrine in the context of historical cell site data or some other new technology. Since Historical Cell Site was decided, the Eleventh Circuit has ruled the other way, although in a decision vacated pending en banc review. United States v. Davis, 754 F.3d 1205, 1217 (11th Cir.2014), rehearing en Banc granted, vacated and rehearing en banc granted, 573 Fed.Appx. 925, 2014 WL 4358411 (11th Cir. Sept. 4, 2014) (distinguishing Smith and Historical Cell Site and holding that “cell site location information is within the subscriber’s reasonable expectation of privacy”); see also In re Application of the U.S." }, { "docid": "16639906", "title": "", "text": "pen register was not a “search” at all under the Fourth Amendment. There is no dispute here that the officers engaged in a search of Wurie’s cell phone. Moreover, call logs typically contain more than just phone numbers; they include any identifying information that an individual might add, such as the label “my house” in Wurie’s case. Id. at 2492-93 (internal citations omitted). This is not to say that the Supreme Court may not reconsider the third party doctrine in the context of historical cell site data or some other new technology. Since Historical Cell Site was decided, the Eleventh Circuit has ruled the other way, although in a decision vacated pending en banc review. United States v. Davis, 754 F.3d 1205, 1217 (11th Cir.2014), rehearing en Banc granted, vacated and rehearing en banc granted, 573 Fed.Appx. 925, 2014 WL 4358411 (11th Cir. Sept. 4, 2014) (distinguishing Smith and Historical Cell Site and holding that “cell site location information is within the subscriber’s reasonable expectation of privacy”); see also In re Application of the U.S. for an Order Directing a Provider of Elec. Commc’n Serv. to Disclose Records to the Gov’t, 620 F.3d 304, 317 (3d Cir.2010) (distinguishing Smith on the ground that a “cell phone customer has not ‘voluntarily’ shared his location information with a cellular provider in any meaningful way”). It may be that the “technology is different” rationale that led the Riley Court to treat an arrestee’s cell phone differently from his wallet will one day lead the Court to treat historical cell site data in the possession of a cellphone provider differently from a pen register in the possession of a pay phone operator. See Riley, 134 S.Ct. at 2488 (“The United States asserts that a search of all data stored on a cell phone is ‘materially indistinguishable’ from searches of these sorts of physical items. That is like saying a ride on horseback is materially indistinguishable from a flight to the moon.” (citation omitted)). Indeed, at least one Justice has expressed skepticism that Smith should apply to modern technologies, United States v. Jones, — U.S." } ]

[ { "docid": "22559262", "title": "", "text": "Discussion (1) Disparate Treatment The defendants argue that Dr. Holifield has failed to establish a prima facie case of unlawful race discrimination. Specifically, the defendants contend that Holifield was not qualified to retain his position as a prison physician, cannot offer evidence of a similarly situated and similarly mistreated employee, and has shown no evidence of racial bias or reprisal on the part of Roswurm or Class. When a plaintiff appeals from a MSPB decision, the district court reviews discrimination claims de novo and non-discrimination claims on the administrative record under Title 5, United States Code, Section 7703(c). Mason v. Frank, 32 F.3d 315, 317 (8th Cir.1994); Carr v. Reno, 23 F.3d 525, 528 (D.C.Cir.1994); Johnson v. Burnley, 887 F.2d 471, 474 (4th Cir.1989). Discrimination claims are analyzed under the disparate treatment analysis common to Title VII employment discrimination cases. Id. Title VII of the Civil Rights Act of 1964 provides that it is unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l) (1988). The plaintiff may establish a prima facie case of discrimination under Title VII on the basis of statistical proof of a pattern of discrimination [see Wilson v. AAA Plumbing Pottery Corp., 34 F.3d 1024, 1027 (11th Cir.1994) ], or on the basis of direct evidence of discrimination, which consists of “evidence which, if believed, would prove the existence of discrimination without inference or presumption.” Carter v. City of Miami, 870 F.2d 578, 581-82 (11th Cir.1989). In the usual case, however, direct evidence is not present, and the plaintiff must rely on circumstantial evidence to prove discriminatory intent, using the framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973). Under McDonnell Douglas, a plaintiff establishes a prima facie ease of race discrimination under Title VII by showing: (1) he belongs to a racial minority; (2) he was subjected to adverse job action; (3) his employer treated similarly situated employees outside" } ]

[ { "docid": "22461647", "title": "", "text": "discriminate against any of his employees or applicants for employment ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter. 42 U.S.C. § 2000e-3(a) (1982). To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in a statutorily protected expression; (2) she suffered an adverse employment action; and (3) there is some causal relationship between the two events. Holifield v. Reno, 115 F.3d 1555, 1566 (11th Cir.1997) (per curiam). Statutorily protected expression includes filing complaints with the EEOC and complaining to superiors about sexual harassment. See, e.g., Rollins v. State of Fla. Dept. of Law Enforcement, 868 F.2d 397, 400 (11th Cir.1989) (“[T]he protection afforded by the statute is not limited to individuals who have filed formal complaints, but extends as well to those, like [appellant], who informally voice complaints to their superiors or who use their employers’ internal grievance procedures.”). Johnson engaged in statutorily protected expressions by filing a charge with the EEOC in June 1997 and complaining about Donnell’s harassment to Walker and Balton on June 6, 1997. Johnson’s employment with WENN ended on May 28, 1997. Thus, Johnson’s June 1997 protected expressions occurred after her employment ended in May 1997, and WENN’s employment decisions could not have been based on Johnson’s protected expressions. Hence Johnson cannot prevail on her retaliation claim, as she failed to satisfy the third Holifield prong: a causal relationship between her complaining about Donnell’s harassment and her transfers or termination. We therefore affirm the district court’s dismissal of Johnson’s retaliation claims. B. Sexual Harassment Claims Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating “against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Sexual harassment can constitute discrimination based on sex for purposes of Title VII. See Mendoza v. Borden, Inc., 195 F.3d 1238," }, { "docid": "8924937", "title": "", "text": "that the DOL retaliated against her for complaining of discrimination. We agree with the district court that the record fails to support Pafford’s claims. II. ANALYSIS A. Summary Judgment Standard We review the district court’s award of summary judgment de novo, viewing all facts and inferences in the light most favorable to the non-moving party. See Oates v. Discovery Zone, 116 F.3d 1161, 1165 (7th Cir.1997); Essex v. United Parcel Serv., Inc., Ill F.3d 1304, 1308 (7th Cir.1997). Summary judgment may be granted only 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.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (quoting Fed.R.Civ.P.56(c)). B. Methods of Proof Title VII makes it an unlawful employment practice for an employer “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual’s race, color, religion, sex, or national origin,” 42 U.S.C. § 2000e-2(a)(1), or for an employer “to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). A plaintiff trying to defeat an employer’s motion for summary judgment has two methods of proof at his or her disposal. Under the “direct” method, the plaintiff may show (either through direct or circumstantial evidence) that the employer’s decision to take the adverse job action was motivated by an impermissible purpose, such as her race or national origin. See Wallace v. SMC Pneumatics, Inc., 103 F.3d 1394, 1397 (7th Cir.1997); Troupe v. May Dep’t Stores Co., 20 F.3d 734, 736 (7th Cir.1994). Under the “indirect” burden-shifting method, the plaintiff may raise an inference of discrimination by offering sufficient evidence to establish a prima facie case. See McDonnell Douglas Corp. v. Green," }, { "docid": "22899841", "title": "", "text": "the nonmoving party, “reasonable minds could come to but one conclusion, in favor of the moving party.” Gray v. Toshiba Am. Consumer Prods., Inc., 263 F.3d 595, 598 (6th Cir.2001). In reviewing the district court’s decision, we may not “weigh the evidence, pass on the credibility of witnesses, or substitute [our] judgment for that of the jury.” Toth v. Yoder Co., 749 F.2d 1190, 1194 (6th Cir.1984); see also Reeves, 530 U.S. at 150, 120 S.Ct. 2097. 2. Retaliation claims under Title VII, the ADEA, and Ohio state law Title VII forbids an employer from “discriminating] against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under [Title VII.].” 42 U.S.C. § 2000e-3(a). 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.” 42 U.S.C. § 2000e-2. The Age Discrimination in Employment Act (the ADEA) similarly prohibits an employer from “discriminat[ing] against any of his employees ... because such individual ... has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or litigation under this [Act].” 29 U.S.C. § 623(d). Section 4112.02(1) of the Ohio Revised Code likewise makes it unlawful for any person to discriminate in any manner against any other person because that person has opposed any unlawful discriminatory practice defined in this section or because that person has made a charge, testified, assisted, or participated in any manner in any investigation, proceeding, or hearing under sections 4112.01 to 4112.07 of the Revised Code. A plaintiff in a Title VII or ADEA action may establish retaliation either by introducing direct evidence of retaliation or by proffering circumstantial evidence that would support an inference of retaliation. DiCarlo v. Potter, 358 F.3d 408, 420 (6th Cir.2004). Direct evidence is that evidence which, if believed, requires no" }, { "docid": "13491769", "title": "", "text": "cause of action will not do.” Twombly, 550 U.S. at 555, 127 S.Ct. 1955. Facial plausibility exists when the facts alleged allow for a reasonable inference that the defendant is liable for the misconduct charged. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. The plausibility standard is not, however, a probability requirement: the pleading must show, not merely allege, that the pleader is entitled to relief. Id. at 678, 129 S.Ct. 1937; Fed.R.Civ.P. 8(a)(2). Well-pleaded allegations must nudge the claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955. B. Title VII Title VII of the Civil Rights Act of 1964 makes it unlawful for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). It further makes it unlawful for an employer to discriminate against an employee “because [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a); Danials-Kirisits v. New York State Office of Court Admin., No. 05-CV-800S, 2013 WL 1755663, at *6 (W.D.N.Y. Apr. 24, 2013). 1. Retaliation “Although a plaintiff need not establish a prima facie case of retaliation to survive a motion to dismiss, courts consider the elements of the prima facie case in determining whether there is sufficient factual matter in the complaint, accepted as true, to allow for a reasonable inference that the defendant is liable for the misconduct alleged.” Ghadersohi v. Roswell Park Inst, No. 10-CV-143S, 2011 WL 4572539, at *3 (W.D.N.Y. Sept. 30, 2011) (citing Iqbal, 129 S.Ct. at 1949 & Doverspike v. Int'l Ordinance Techs., 817 F.Supp.2d 141, 148 (W.D.N.Y.2010)). “To state a claim for retaliation in violation of Title VII, a plaintiff must plead facts that would tend to show that: (1) she participated in a protected activity known to the defendant; (2) the defendant took an employment action disadvantaging" }, { "docid": "9755334", "title": "", "text": "Samford, attack plaintiffs complaint on the grounds that his notification to Samford officials that students were being unfairly discriminated against on the basis of their gender is not a statutorily protected activity and thus plaintiff has failed to establish his prima facie case. The initial element of plaintiffs prima fa-cie case is “established if [he] can show that he opposed an unlawful employment practice which he reasonably believed occurred.” Bigge v. Albertsons, Inc., 894 F.2d 1497 (11th Cir.1990) (emphasis added). Title VII defines an employment practice as follows: It shall be an unlawful employment practice for an employer— (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). “[I]n enacting Title VII of the Civil Rights Act of 1964, Congress intended to prohibit all practices in whatever form which create inequality in employment opportunity due to discrimination on the basis of ... sex____” Franks v. Bowman Trans. Co., 424 U.S. 747, 763, 96 S.Ct. 1251, 1263, 47 L.Ed.2d 444 (1976) (emphasis added). Taking the facts alleged by plaintiff as true, plaintiffs complaint fails to state a cause for retaliation for which relief can be granted under Title VII. Plaintiff alleges that he championed the cause of “a woman student” who was “a victim of sexual discrimination” at Samford. Complaint at ¶7 (emphasis added). He has not alleged that this student was discharged from employment, not chosen for employment, or otherwise denied any privilege of employment by Samford. Framing the allegations of the complaint in the light most favorable to plaintiff, he has only asserted that a female student was being unfairly treated by an instructor and that" }, { "docid": "23450667", "title": "", "text": "Although we must accept as true all well-pled allegations, Jordan v. Fox, Rothschild, O’Brien & Frankel, 20 F.3d 1250, 1261 (3d Cir.1994), we need not credit the non-movant’s conclusions of law or unreasonable factual inferences. Morse v. Lower Merion Sch. Dist., 132 F.3d 902, 906 (3d Cir.1997). Finally, we can affirm on any basis appearing in the record. Bernitsky v. United States, 620 F.2d 948, 950 (3d Cir.1980). IV. Discussion Title VII provides, in relevant part: It shall be an unlawful employment practice for an employer — • (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individuals race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a). The PDA, 42 U.S.C. § 2000e(k), provides: The terms “because of sex” or “on the basis of sex” include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes.... This subsection shall not require an employer to pay for health insurance benefits for abortion, except where the life of the mother would be endangered if the fetus were carried to term, or except where medical complications have arisen from an abortion. Id. Title VII also contains a provision that protects employees from retaliation: “It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchap-ter....” 42 U.S.C. § 2000e-3(a). Curay-Cramer contends that Title VII’s opposition clause protects any employee who has had an abortion, who contemplates having an abortion, or who supports" }, { "docid": "22332029", "title": "", "text": "alleging unlawful retaliation under 42 U.S.C. § 1981, 42 U.S.C. § 1983, 42 U.S.C. § 1981a, and the New York State Human Rights Law. Plaintiffs assert seven categories of such retaliatory conduct, which are analyzed below. At the close of discovery, the district court granted Baines’s motion for summary judgment on all claims. Hicks v. Baines, No. 99-civ-0315C, 2006 WL 1994808 (W.D.N.Y. July 14, 2006). The court reasoned that “plaintiffs’ affidavits contain only conclusory allegations” that did not “result[ ] in any meaningful change in the terms and conditions of plaintiffs’ employment.” Id. at *6. In so holding, however, the district court failed to apply the then-recent, but unquestionably controlling, Supreme Court decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), which broadened the scope of Title VII’s anti-retaliation protection. This appeal followed. We now vacate and remand in part and affirm in part. II All of plaintiffs’ retaliation claims are analyzed pursuant to Title VII principles. See Patterson v. County of Oneida, N.Y., 375 F.3d 206, 225 (2d Cir.2004) (“Most of the core substantive standards that apply to claims of discriminatory conduct in violation of Title VII are also applicable to claims of discrimination in employment in violation of § 1981 or the Equal Protection Clause.”); Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d Cir.1996) (“We consider [plaintiffs] state law claims in tandem with her Title VII claims because New York courts rely on federal law when determining claims under the New York [State] Human Rights Law.”). Title VII makes it unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). Title VII also includes an anti-retaliation provision which makes it unlawful “for an employer to discriminate against any ... employee[ ] or applicant! ] ... because [that individual] opposed any practice” made unlawful by Title VII or “made a charge, testified, assisted, or participated in” a Title" }, { "docid": "207145", "title": "", "text": "Summary Judgment as to Plaintiffs Title VII and PHRA Claims Title VII and the PHRA are interpreted co-extensively. Thompson v. Kellogg’s USA, 619 Fed.Appx. 141, 144 n. 2 (3d Cir.2015). Title VII provides,' in relevant part, that “It shall-, be an unlawful employment practice for an employer (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a). . This provision forbids employers from discriminating against an employee because of that employee’s religion. E.E.O.C. v. Abercrombie & Fitch Stores, Inc., — U.S. -, 135 S.Ct. 2028, 2032, 192 L.Ed.2d 35 (2015). Under Title VII, “[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j). “In the Third Circuit, employees may rely on two different theories to establish a claim for religious discrimination: ‘disparate treatment’ on account of religion, or ‘failure to accommodate’ religious beliefs,” Wallace v. City of Philadelphia, No. 06 Civ. 4236, 2010 *WL 1730850, at *6 (E.D.Pa. Apr. 26, 2010) (quoting Abramson v. William Paterson College of N.J., 260 F.3d 265, 281 (3d Cir.2001)). An employee may also claim that his employer retaliated against him for opposing an employment practice that he reasonably believed to be unlawful under Title VII. 42 U.S.C. § 2000e-3(a) (defining “unlawful employment practice” to include discrimination against an individual “because he has opposed any practice made an unlawful employment practice by this. subchapter, or because he has” complained of discrimination). In this case, plaintiff asserts claims under three theories for (1) termination due to his religious beliefs, (2) denial of a' reasonable religious accommodation, and (3) termination in retaliation for requesting a reasonable religious accommodation. PL’s Resp. at 2. Defendant moves for summary judgment as to all of plaintiffs" }, { "docid": "15728721", "title": "", "text": "Court’s examples were given without regard to the specific discriminatory motivation for the action; it was the type of action itself that was determinative. This approach makes sense, for the focus is on whether a court can discern the date of an act’s “occurrence.” Retaliation is another type of discrimination under Title VII, one that is equivalent to the prohibition on sex and race discrimination; Title VII proscribes discrimination against an employee for a protected act of exposing an employer’s previous discrimination. See 42 U.S.C. § 2000e-2(a) (proscribing race, color, religion, sex, and national-origin discrimination); and § 2000e-3(a) (proscribing discrimination taken against an employee “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter”); see also 42 U.S.C. § 2000e-5(a) (providing the EEOC with authority to prevent “any unlawful employment practice as set forth in section 2000e-2 or 2000e-3 of this title”). Plaintiff offers no reason for the Court to treat most retaliation claims, including hers, differently from other complaints of discrete acts. Indeed, plaintiffs complaint itself is evidence enough that each recent act of alleged retaliation in this case is a discrete act: the mediator’s oral statement to plaintiffs counsel on October 8, 2003 (Complaint ¶ 24); and Ms. Shea’s letter to plaintiff dated November 6, 2003, directing her back to work at an EPA office on December 1, 2003 (Complaint ¶ 24). In short, there is no relevant distinction between Morgan’s holding that plaintiffs may not revive a stale discrimination claim by tying it to a timely-filed claim, and defendant’s argument here that the plaintiff should not be permitted to avoid the requirement of exhaustion merely because this latest act of alleged discrimination— arbitrarily removing the reasonable accommodation of working at home in retaliation for filing discrimination complaints — is tied to earlier, exhausted complaints. Aecord- ingly, in light of Morgan the Court concludes that the plaintiff has not exhausted her claim of retaliation that stems from EPA’s November 2003 transfer" }, { "docid": "23178632", "title": "", "text": "find in favor of the non-moving party. See Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir.1993). In evaluating the merits of the motion, “the court must view the evidence in a light most favorable to the nonmovant and grant that party every reasonable inference that the jury might have drawn in its favor.” Hannex Corp. v. GMI, Inc., 140 F.3d 194, 203 (2d Cir.1998) (quotation omitted). We apply the same standard for judgment as a matter of law as the district court. See Eagleston v. Guido, 41 F.3d 865, 875 (2d Cir.1994). I. Title VII Claim Section 704 of Title VII prohibits an employer from “discriminating] against any of his employees ... because [the employee] has opposed any practice made an unlawful employment practice by this subchapter.” 42 U.S.C. § 2000e-3(a). Section 703(a) defines an “unlawful employment practice” as follows: It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin. ... 42 U.S.C. § 2000e-2(a)(l). The district court’s grant of judgment as a matter of law on the Title VII claim at the close of Wimmer’s case was based on its determination that Wimmer had presented insufficient evidence to establish a prima facie case of retaliation. “To establish a prima facie case of retaliation, an employee must show ‘[1] participation in a protected activity known to the defendant; [2] an employment action disadvantaging the plaintiff; and [3] a causal connection between the protected activity and the adverse employment action.’ ” Quinn v. Green Tree Credit Corp., 159 F.3d 759, 769 (2d Cir.1998) (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1308 (2d Cir.1995)). To establish the first of these elements—participation in a protected activity—Wimmer need not prove that the conditions against which he protested actually amounted to a violation of Title VII. See id. (citing Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d" }, { "docid": "10887185", "title": "", "text": "” Exantus v. Harbor Bar & Brasserie Rest., 386 Fed.Appx. 352, 355 (3d Cir.2010). At this early stage, in determining whether Plaintiff states a plausible claim of retaliation under state and federal law, I must accept Plaintiffs factual allegations as true, including all reasonable inferences drawn therefrom. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009). a. The Requirement of Protected Activity In Crawford v. Metro. Gov’t of Nashville & Davidson Cnty., Tenn., the Supreme Court outlined the two different types of protection afforded by Title YII’s anti-retaliation provision. The Title VII antiretaliation provision has two clauses, making it “an unlawful employment practice for an employer to discriminate against any of his employees ... [1] because he has opposed any practice made an unlawful employment practice by this subchapter, or [2] because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” 42 U.S.C. § 2000e-3(a). The one is known as the “opposition clause,” the other as the “participation clause,” ... The opposition clause makes it “unlawful ... for an employer to discriminate against any ... employe[e] ... because he has opposed any practice made ... unlawful ... by this subchapter.” § 2000e-3(a). The term “oppose,” being left undefined by the statute, carries its ordinary meaning, Perrin v. United States, 444 U.S. 37, 42, 100 S.Ct. 311, 62 L.Ed.2d 199 (1979): “to resist or antagonize ...; to contend against; to confront; resist; withstand,” Webster’s New International Dictionary 1710 (2d ed.1958). 555 U.S. 271, 274, 276, 129 S.Ct. 846, 172 L.Ed.2d 650 (2009). In further interpreting the opposition and participation clauses of Title VII, the Third Circuit has held that formal and informal complaints of discrimination or harassment constitute protected activities. Abramson v. William Paterson Coll. of New Jersey, 260 F.3d 265, 288 (3d Cir.2001) (“[T]he complaints to [defendant], whether oral or written, formal or informal, are sufficient to satisfy the first prong of the prima facie case, provided the complaints expressed Abram-son’s opposition to a protected activity under Title VIL”) (citing Sumner v. U.S." }, { "docid": "23565659", "title": "", "text": "case. The District Court stated that Slagle “failed to establish that he engaged in protected activity, which is an essential element of a prima facie case of retaliation under Title VII.” App. at 41. Slagle appeals. II. In reviewing the grant of summary judgment, we must view “the underlying facts and all reasonable inferences therefrom in the light most favorable to the party opposing the motion.” In re Flat Glass Antitrust Litig., 385 F.3d 350, 357 (3d Cir.2004). Summary judgment is appropriate where there are no genuine is sues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). To prevail on a claim of retaliatory discharge in violation of Title VII and the analogous provision of the PHRA, Slagle must demonstrate that: 1) he engaged in conduct protected by Title VII; 2) his employer took an adverse action against him either after or contemporaneous with the protected activity; and 3) a causal link exists between his protected conduct and the employer’s adverse action. Weston v. Pennsylvania, 251 F.3d 420, 430 (3d Cir. 2001). Slagle argues that the District Court erred in holding that he failed to establish that he engaged in conduct protected under Title VII. Title VII prohibits employers from discriminating on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. The anti-retaliation provision of Title VII provides, in pertinent part: It shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this sub-chapter. 42 U.S.C. § 2000e-3(a) (emphasis added). Slagle argues that filing a charge with the EEOC constitutes'- protected activity under the participation clause, which protects an employee who has “made a charge [or otherwise] participated ... in an investigation ... under this subchapter.” He asserts that he engaged in protected activity when he filed a charge alleging “unspecified civil rights" }, { "docid": "19980928", "title": "", "text": "if real damages were proved, however, MVM still must demonstrate that the letter was the proximate cause of this result, and it has also failed to do that. In sum, the Court holds that MVM’s tortious interference with a contract claim is preempted by the NLRA. In the alternative, the Court also holds that MVM fails to state a claim for tortious interference with a contract because it has not supported its allegation that it suffered damages. Accordingly, the Court DENIES MVM’s motion for summary judgment on its tortious interference claim and instead DISMISSES MVM’s tortious interference with a contract claim. C. Title VII Title VII of the Civil Rights Act of 1964 prohibits discrimination against “any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Title VII provides a cause of action for both discrimination and retaliation. Petitti v. New England Telephone & Telegraph Co., 909 F.2d 28, 31 (1st Cir.1990). The “anti-retaliation” provision of Title VII prohibits an employer from taking an adverse employment action against an employee who initiated an action under Title VII. 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer to discriminate against any of his employees or applicants for employment ... because he has opposed any practice made an unlawful employment practice by this subchap-ter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subehapter.”) To establish a prima facie case of retaliation, a plaintiff must prove by a preponderance of the evidence that (1) he engaged in protected conduct under Title VII; (2) he suffered an adverse employment action; and (3) the adverse action was causally connected to the protected activity. Dressler v. Daniel, 315 F.3d 75, 78 (1st Cir.2003); Hernandez-Torres v. Intercontinental Trading, Inc., 158 F.3d 43, 47 (1st Cir.1998). “An allegedly retaliatory act must rise to some level of sub-stantiality before it can be actionable.” Noviello v. City of Boston, 398 F.3d 76, 92" }, { "docid": "20538914", "title": "", "text": "claims against the DCNG that were previously dismissed should be denied. Clayton’s claims against the DCNG in Counts Four and Five of her amended complaint were dismissed because they were barred by sovereign immunity. In her proposed second amended complaint, Clayton again alleges these claims but does not provide additional argument or support to establish that this court has subject matter jurisdiction over Counts Four and Five against the DCNG. See Nat’l Wrestling Coaches Ass’n v. Dep’t of Educ., 366 F.3d 930, 945 (D.C.Cir.2004). Because these claims have already been dismissed, Clayton’s motion to reallege Counts Four and Five against the DCNG will be denied. Similarly, Clayton’s motion attempts to revive her claims against the District that were previously dismissed. Clayton’s wrongful termination and due process claims, as well as her claim for a declaratory judgment that D.C.Code § 1.609-58 is facially unconstitutional, were all dismissed for failure to state a claim. However, Clayton’s amended complaint does not add any new factual allegations to remedy these shortcomings. Accordingly, because these claims have already been dismissed, Clayton’s motion to reallege Counts Three and Four and the facial constitutional challenge in Count Five against the District will be denied. The DCNG also argues that allowing Clayton to amend her complaint to add new Title VII claims against it would be futile because the DCNG was not Clayton’s employer when the allegedly discriminatory conduct occurred. Title VII prohibits “an employer” from discriminating against “any individual with respect to [her] compensation, terms, conditions, or privileges of employment” on the basis of sex. 42 U.S.C. § 2000e-2(a)(1). Section 704(a) of Title VII also makes it unlawful “for an employer to discriminate against any of his employees or applicants for employment ..., because [s]he has opposed any practice made an unlawful employment practice by this subchapter, or because [s]he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing.” 42 U.S.C. § 2000e-3(a). Finally, Title VII also protects federal government “employees or applicants for employment ... from any discrimination based on race, color, religion, sex, or national origin.” 42" }, { "docid": "13173441", "title": "", "text": "with respect to all claims. Yazdian now appeals the district court s judgment as to the Title VII discrimination and retaliation claims. He does not appeal the district court’s order with respect to his unjust-enrichment claim. III. TITLE VII We review a district court’s grant of summary judgment de novo. Griffin v. Finkbeiner, 689 F.3d 584, 592 (6th Cir. 2012). When considering whether there is a genuine dispute of material fact, we must believe Yazdian’s evidence and draw “all justifiable inferences ... in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). We must abstain from making credibility determinations, weighing evidence, and “drawing of legitimate inferences” in favor of the moving party because those are “jury functions, not those of a judge.” Id. A. Retaliation Claim Title VII makes it an “unlawful employment practice” for an employer to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(l). Title VII also prohibits employers from “discriminating] against ... [an] employee ... because [the employee] has opposed any [unlawful] employment practice, or because [the employee] has made a charge” that the employer has engaged in an unlawful employment practice. Id. § 2000e-3(a). Yazdian alleges that Con-Med violated Title VII by terminating him for complaining about Sweatt’s discriminatory conduct. A plaintiff who alleges retaliation in violation of Title VII may establish the claim through direct or circumstantial evi dence. Imwalle v. Reliance Med. Prods., Inc., 515 F.3d 531, 543 (6th Cir.2008). Yazdian contends that he has introduced both direct and circumstantial evidence of retaliation for engaging in protected activity. ConMed argues that Yazdian has failed to show that he can meet his burden using either method of proof because he did not engage in protected activity. We begin with whether Yazdian opposed an employment practice that he reasonably believed was discriminatory because that question is essential to the viability of Yaz-dian’s retaliation claim. 1. Protected Activity To come within the protection of Title VII," }, { "docid": "22083061", "title": "", "text": "of the top fifteen percent of candidates for the position of Program Superintendent, but he also was not promoted. Appellants filed the current action in federal district court on April 10, 1998, alleging that they had been subjected to disparate treatment because of their race and that they had suffered retaliation, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(l); 42 U.S.C. § 2000e-3(a). Tate additionally alleges that he was discriminated against in retaliation for filing an EEOC charge and for his participation in the present action when his supervisor, in August 1996 and then again in September 1998, presented him with a “fully successful” performance evaluation. Appellee moved for summary judgment, and the district court issued an order granting summary judgment against appellants on each of their claims. Appellants now appeal. II. STANDARD OF REVIEW We review the district court’s order granting summary judgment de novo. Strahan v. Kirkland, 287 F.3d 821, 825 (9th Cir.2002). We “must determine, viewing the evidence in the light most favorable to the nonmoving party, whether the district court correctly applied the relevant substantive law and whether there are any genuine issues of material fact.” Balint v. Carson City, 180 F.3d 1047, 1050 (9th Cir.1999) (en banc). III. DISCUSSION Title VII provides that “[i]t shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). The employer is also prohibited “from retaliating against an applicant for employment because the applicant has opposed any unlawful employment practice, or has made a charge, testified, assisted, or participated in an employment discrimination investigation or proceeding.” Lam v. Univ. of Hawaii, 40 F.3d 1551, 1558-59 (9th Cir.1994) (citing 42 U.S.C. § 2000e-3(a)). We must decide (1) whether appellants have exhausted their administrative remedies with regard to challenged conduct occurring after the filing of their EEOC charge; (2) whether appellants" }, { "docid": "23106065", "title": "", "text": "in this case, there is an additional reason why dismissal of Deravin’s race discrimination claim was inappropriate. Regardless of the actual content of his EEOC complaint, Deravin also alleges that the failure to specify race as a basis for his discrimination claim can be blamed on the EEOC counselor who helped him fill out the complaint form. See B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1102 (9th Cir.2002) (concluding that a plaintiff may present evidence of agency error as evidence that her Title VII discrimination claim was properly exhausted). While the District Court identified several reasons to doubt Deravin’s story, there is also evidence in this case that verifies Deravin’s claim of administrative error. For example, the EEOC notice of charge fails to list retaliation as an independent basis for Deravin’s discrimination claim, although Deravin undisputedly alleged retaliation in his initial administrative complaint. While we acknowledge that Dera-vin’s claim of administrative error may ultimately prove to be non-credible, the District Court was not entitled to make an adverse credibility finding on a Rule 12(c) motion. See generally Patel, 305 F.3d at 134-35. Accepting all of Deravin’s allegations as true, dismissal for failure to meet Title VII’s administrative exhaustion requirement was inappropriate at this early stage in the litigation, and we therefore vacate the District Court’s dismissal of Deravin’s race discrimination claim. IV. The District Court also rejected Dera-vin’s retaliation claim, concluding that defending oneself against charges of discrimination is not protected activity within the meaning of Title VII. However, Title VII’s anti-retaliation provision is broadly drawn. Section 704(a) of Title VII makes it unlawful to retaliate against an employee, “because he has opposed any practice made an unlawful employment practice by this subchapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchap-ter.” 42 U.S.C. § 2000e-3(a) (emphasis added). As courts have consistently recognized, the explicit language of § 704(a)’s participation clause is expansive and seemingly contains no limitations. See, e.g., Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1353 (11th Cir.1999) (“The words ‘participate" }, { "docid": "21195841", "title": "", "text": "Title VII’s anti-retaliation provision provides that “[i]t shall be an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an unlawful employment practice by this subchapter” (the “opposition clause”), or “because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter” (the “participation clause”). 42 U.S.C. § 2000e-3(a). Because plaintiff does not allege that he participated in any investigation, proceeding, or hearing under Title VII, the Court considers plaintiffs retaliation claims under the opposition clause of Title VII’s retaliation provision. As discussed above, plaintiff alleges that he opposed a practice made an unlawful employment practice under Title VII when he refused to sign a declaration in support of the Government’s motion to dismiss in Worth. Plaintiffs refusal was based on his belief that his signature would have effectively extinguished HUD’s current affirmative action plan (MD-714) and that HUD’s failure to have an affirmative action plan in place would violate Title VII, specifically 42 U.S.C. § 2000e — 16(b)(1). Simply put, however, plaintiffs refusal to sign the Worth declaration is not an “unlawful employment practice” as defined by Title VII and thus does not qualify as “protected activity” for the purposes of establishing a prima facie case of retaliation. Indeed, this is true even if HUD’s failure to have an affirmative action plan in place does in fact legally contravene 42 U.S.C. § 2000e-16(b)(1). In defining an “unlawful employment practice,” Title VII explicitly states: It shall be an unlawful employment practice for an employer - (1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin; or (2) to limit, segregate, or classify his employees ... in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex," }, { "docid": "2199591", "title": "", "text": "exclusive procedures by which a complainant may seek relief — specific performance of the settlement agreement or reinstatement of the original complaint. We therefore join our sister circuits and affirm the district court’s dismissal of this claim for lack of subject-matter jurisdiction. III. RETALIATION CLAIM We review de novo a district court’s grant of summary judgment. Int’l Union v. Cummins, Inc., 434 F.3d 478, 483 (6th Cir.2006). We review the evidence and draw all inferences in the light most favorable to Taylor as the nonmoving party. Id. Summary judgment is appropriate “if 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). Title VII provides that “[a]ll personnel actions affecting employees ... in executive agencies ... shall be made free from any discrimination based on race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). Additionally, Title VII specifically proscribes retaliation, stating that it is “an unlawful employment practice for an employer to discriminate against any of his employees ... because he has opposed any practice made an un lawful employment practice by this sub-chapter, or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing under this subchapter.” Id. § 2000e-3(a). A plaintiff “may prove unlawful retaliation by presenting direct evidence of such retaliation or by establishing a 'prima facie case under the McDonnell Douglas framework.” Abbott v. Crown Motor Co., 348 F.3d 537, 542 (6th Cir.2003); see also Spengler v. Worthington Cyclinders, 615 F.3d 481, 491-92 (6th Cir.2010) (applying the McDonnell Douglas framework to a retaliation claim). “The burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met.” Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 523 (6th Cir.2008) (internal quotation marks omitted). Taylor does not present direct evidence of retaliation, and, therefore, she must demonstrate by a preponderance of the evidence four elements: (1) she engaged in a protected activity under Title VII, (2) the exercise of protected rights" }, { "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": "22711443", "title": "", "text": "242, 251. So, our decisions have interpreted the Act to require clear relinquishment of sovereign immunity to give jurisdiction for tort actions. Where jurisdiction was clear, though, we have allowed recovery despite arguable procedural objections. One only need read § 2680 in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions. Negligence in administering the Alien Property Act, or in establishing a quarantine, assault, libel, fiscal operations, etc., was barred. An analysis of § 2680 (a), the exception with which we are concerned, emphasizes the congressional purpose to except the acts here charged as negligence from the authorization to sue. It will be noted from the form of the section, see p. 18, supra, that there are two phrases describ ing the excepted acts of government employees. The first deals with acts or omissions of government employees, exercising due care in carrying out statutes or regulations whether valid or not. It bars tests by tort action of the legality of statutes and regulations. The second is applicable in this case. It excepts acts of discretion in the performance of governmental functions or duty “whether or not the discretion involved be abused.” Not only agencies of government are covered but all employees exercising discretion. It is clear that the just-quoted clause as to abuse connotes both negligence and wrongful acts in the exercise of the discretion because the Act itself covers only “negligent or wrongful act or omission of any employee,” “within the scope of his office” “where the United States, if a private person, would be liable.” 28 U. S. C. § 1346 (b). The exercise of discretion could not be abused without negligence or a wrongful act. The Committee reports, note 21, supra, show this. They say § 2680 (a) is to preclude action for “abuse of discretionary authority . . . whether or not negligence is alleged to have been involved.” They speak of excepting a “remedy on account of such discretionary acts even though negligently performed and involving an abuse of discretion.” So we" } ]

[ { "docid": "14590728", "title": "", "text": "MEMORANDUM GILES, District Judge. Cross Brothers Meat Packers, Inc., (Cross) brought this action under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346, 2671-2680 (1976), seeking damages of $627,-380.56 from the United States. Plaintiff alleges that, between 1977 and 1979, two Department of Agriculture meat graders employed at plaintiff’s plant consistently graded plaintiff’s meat in a negligent manner, causing plaintiff to lose business and profits. Cross further alleges that its repeated complaints to the graders’ supervisors resulted in neither investigative nor corrective action by the Government. The Government has moved for dismissal, or, in the alternative, summary judgment, asserting that plaintiff’s claim is barred by 28 U.S.C. § 2680(h), which provides that the FTCA’s waiver of governmental immunity does not extend to claims arising out of misrepresentation. Plaintiff responds that its cause of action arises not from misrepresentation, but from the negligence of the Department’s employees in failing to perform the grading service properly. For the reasons set forth below, the Government’s motion is granted. The seminal case interpreting the misrepresentation exception is United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). There, the Court held that the exception barred a suit by purchasers of a home who relied upon a negligently inaccurate Federal Housing Administration (FHA) inspection and appraisal report. The plaintiffs purchased the home for a price based upon the FHA appraisal value. After moving in, they discovered a serious value-impairing structural defect not disclosed by the report. Plaintiffs sought to recover from the United States the difference between the fair market value and the purchase price. The Court held that the claim was barred because it arose from misrepresentation of the condition and value of the house, rather than from negligent inspection. [T]he argument has been made by plaintiffs, and consistently rejected by the courts, ... that the bar of § 2680(h) does not apply when the gist of the claim lies in negligence underlying the inaccurate representation, i.e., when the claim is phrased as one “arising out of” negligence rather than “misrepresentation.” But this argument ... is nothing more than" }, { "docid": "11477799", "title": "", "text": "the risks of granuloma constituted negligence on the part of his government surgeon. The district court, relying on our earlier decisions of Hungerford v. United States, 307 F.2d 99 (9th Cir. 1962), and De Lange v. United States, 372 F.2d 134 (9th Cir. 1967), dismissed the action on the ground that a failure to warn a patient constitutes a misrepresentation within the meaning of 28 U.S.C. § 2680(h), and as such the tort is not actionable against the United States. We reverse the district court’s order of dismissal. The Federal Tort Claims Act confers jurisdiction on the federal courts over “civil actions on claims against the United States, for money damages . . . for . personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under the circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). Certain specified torts are excluded from coverage, however. The exclusion provisions are found in 28 U.S.C. § 2680, which pro vides: “Section 1346(b) of this title shall not apply to . (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander,' misrepresentation, deceit, or interference with contract rights.” (emphasis added). Questions of interpretation under the exclusion provisions are controlled by federal law. See United States v. Neustadt, 366 U.S. 696, 705-06, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961); United States v. DeCamp, 478 F.2d 1188, 1191 (9th Cir. 1973); Stepp v. United States, 207 F.2d 909, 911 (4th Cir. 1953). Although the legislative history of section 2680(h) is not as informative as we would like, the Supreme Court has interpreted it to mean that in enacting the exclusion provision Congress had in mind the “traditional and commonly understood” torts of negligent misrepresentation and common law deceit. Neustadt v. United States, 366 U.S. at 706-07, 711 n.26, 81 S.Ct. at 1300, 6" }, { "docid": "3649445", "title": "", "text": "good faith but incorrectly, caused it to act in reliance on the FAA’s promise that it would abide by the terms of the IFB and regulations. While the Tort Claims Act is an abrogation of sovereign immunity to be liberally read when applicable, the retention of immunity in the act’s exceptions must also be respected. Indian Towing Co. v. United States, 350 U.S. 61, 68-69, 76 S.Ct. 122, 100 L.Ed. 48 (1955). Those exceptions, codified at 28 U.S.C. § 2680, include the following: The provisions of this chapter and section 1346(b) of this title shall not apply to— ****** (h) Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346(b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution. . 28 U.S.C. § 2680(h)(1970), as amended by P.L. 93-253, § 2, 88 Stat. 50 (1974). In passing on the scope of this exception, the Supreme Court has unequivocally stated “that § 2680(h) comprehends claims arising out of negligent, as well as willful, misrepresentation.” United States v. Neustadt, 366 U.S. 696, 702, 81 S.Ct. 1294, 1298, 6 L.Ed.2d 614 (1961). Scanwell’s claim therefore falls within one of the exceptions to government liability of the Tort Claims Act, and was properly dismissed by the district court, against the government defendants. But even if the tort stated in the complaint is not one of the substantive delicts excepted from coverage by 28 U.S.C. § 2680(h), the so-called “discretionary exception” (28 U.S.C. § 2680(a)) controls. That provision excludes any claim “based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved" }, { "docid": "22305887", "title": "", "text": "court. On this limited record, it was error to dismiss the claim. C. The Third Cause of Action The third cause of action alleged a principal-agent relationship between HUD and the URA. The City and URA allege that this relationship, if proven, would render HUD responsible to indemnify them in the event they are found liable to the plaintiffs. In opposing HUD’s motion to dismiss this cause of action, the URA submitted the affidavit of Nicholas E. Marchelos, its former Deputy Director, which alleged that “regulation by HUD [of the URA] was close and extremely detailed” and set forth some examples of the alleged regulation, including mandatory approval by HUD of acquisitions and prices, site development, and other matters pertaining to the Plan. HUD submitted no papers at all beyond the motion to dismiss, which alleged in conclusory fashion that “no agency relationship exists in fact or law.” The parties appear to agree, as do we, that United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976), governs this claim. Under Orleans, the URA could be deemed to have acted as an “agent” of the United States only if the United States supervised the day-to-day operations of the URA. Id. at 815, 96 S.Ct. at 1976. Summary judgment, however, is appropriate only when no material issues of fact remain to be decided, and the burden is on the moving party to show that such is the case. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); United States v. Pent-R-Books, Inc., 538 F.2d 519, 529 (2d Cir. 1976), cert. denied, 430 U.S. 906, 97 S.Ct. 1175, 51 L.Ed.2d 582 (1977); Heyman v. Commerce & Industrial Insurance Co., 524 F.2d 1317, 1320 (2d Cir.1975). HUD did not sustain this burden; indeed, it made no more than a conclusory allegation in its motion and did not respond at all to the Marchelos affidavit introduced by the URA. Cf. Park Avenue Tower Assoc's v. City of New York, 746 F.2d 135, 141 (2d Cir.1984) (non-moving party may not defeat supported" }, { "docid": "1807910", "title": "", "text": "government is premised on the Federal Tort Claims Act (FTCA) which serves to provide both a waiver of sovereign immunity, 28 U.S.C. § 2674 (1982), and a jurisdictional grant of authority, 28 U.S.C. § 1346(b) (1982) to the courts to hear certain tort claims against the government. Although the FTCA does not delineate the torts for which the United States may be sued, it does specifically except certain claims from application of the Act, including claims arising out of either intentional or negligent misrepresentation. 28 U.S. C.A. § 2680(h) (West Supp.1987); see also United States v. Neustadt, 366 U.S. 696, 703-06, 81 S.Ct. 1294, 1298-1300, 6 L.Ed.2d 614 (1961): The government, in the case before us, contends that the Bonuchis’ claim is based on injury suffered by their reliance on statements made either expressly or implicitly by the FmHA as to the quality of the construction of their house. The government argues, therefore, that the Bonuchis state a claim of misrepresentation which is precluded by the section 2680(h) exception of the FTCA. Appellants, on the other hand, argue that their cause of action is properly characterized as one of simple negligence arising from the inadequately performed inspection and appraisal of their house and that their action is therefore federally cognizable. We find the Bonuchis’ argument to be without merit in light of the Supreme Court’s holding in United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). In Neustadt, the purchaser of a home relied on an appraisal made by the Federal Housing Administration (FHA) for mortgage insurance purposes. After taking up residence, the purchaser discovered serious structural defects which had not been noticed by the FHA during the course of its inspection, and which rendered the house’s fair market value substantially lower than the FHA appraised value. The purchaser sued the government alleging that the FHA had negligently inspected and appraised the property, and that he had justifiably relied on the appraisal in purchasing the house. The Supreme Court rejected the Fourth Circuit’s finding that the misrepresentation was ‘“merely incidental’ to the ‘gravamen’ of the" }, { "docid": "13825288", "title": "", "text": "rights... . 28 U.S.C. § 2680(h) (1976). At the hearing on HUD’s motion counsel for JM agreed with the court that the reason for the suit against the government was JM’s belief that HUD “should have told it that the bonds were no good.” App. at A36. However, JM, also contended that “what we have is a reliance on the rules and regulations of HUD setting forth that there are to be payment and performance bonds for this particular project.” App. at A38. “The negligent performance of an operational task — ” and that’s what we have in our case before your Honor, a task that has been dictated by statutory regulations of HUD as applies to this particular type of project, and that is to make sure there is a payment and performance bond. Having failed to achieve that responsibility or having learned that the bond was ineffective, and having assumed some responsibility for the supervision and the inspection of the project as it proceeded, especially as it related to the requisition and the disbursal of funds for the subcontractors, we believe that HUD breached its responsibility of using due care on behalf of the contractors and therefore has violated the standard and made itself liable for the damages that have been incurred by the plaintiff. App. at A40. The government argued that no matter how JM attempted to characterize its action, the complaint was an action for injuries resulting from a negligent misrepresentation by omission of the government. As such, a suit for recovery under the FTCA was barred by 28 U.S.C. § 2680(h) (1976). See United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). The district court concluded that JM’s claim was one for misrepresentation and that it fell within the misrepresentation exception to the FTCA, and thus the court granted HUD’s motion to dismiss. This appeal followed. II A On appeal both JM and HUD renew the arguments they made before the district court. The government further argues that even if a non-misrepresentation claim arose out of the transaction, where the" }, { "docid": "22305885", "title": "", "text": "that it fell either within the statutory exception for “misrepresentation,” 28 U.S.C. § 2680(h) (1982); see United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), or within the exception for “discretionary functions,” 28 U.S.C. § 2680(a) (1982); see Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Since the only applicable grant of subject matter jurisdiction or waiver of sovereign immunity for such a claim is contained in the Tort Claims Act, the effect of either one of the district court’s findings would be to deprive the court of power to adjudicate the cause. We find the record insufficiently complete, at this juncture, to justify dismissal on either of the grounds relied upon by the district court. The third-party plaintiffs made no specification of negligence beyond the assertion in the third-party complaint that if they were found liable, HUD must be found negligent. While it may be that this claim is one for “misrepresentation,” compare United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961) with Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), or involved a “discretionary function” within the teaching of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), we view the record in the light most favorable to the parties opposing dismissal. See National Metropolitan Bank v. United States, 323 U.S. 454, 456-57, 65 S.Ct. 354, 355, 89 L.Ed. 383 (1945); Beal v. Missouri Pac. R.R., 312 U.S. 45, 51, 61 S.Ct. 418, 421, 85 L.Ed. 577 (1941); MacDonald v. DuMaurier, 144 F.2d 696, 700-01 (2d Cir. 1944); 5 C. Wright & A. Miller, supra, § 1368, at 690. The City and URA in the third-party complaint alleged only that HUD may have been “negligent.” HUD, in its motion to dismiss, stated in conclusory fashion that the negligence must have been misrepresentation and that “the alleged misrepresentations are HUD’s ap proval of the project without realizing the alleged loss of access to the subject property.” Apparently nothing more was before the district" }, { "docid": "4946823", "title": "", "text": "the front door.’” Lambertson v. United States, supra, 528 F.2d at 445, quoting from Laird v. Nelms, 406 U.S. 797, 802, 92 S.Ct. 1899, 1902, 32 L.Ed.2d 499 (1972). The Court of Appeals’ recent decision in Kohn v. United States, 680 F.2d 922 (2d Cir. 1982), is instructive. Plaintiffs there, parents of a serviceman shot to death by a fellow soldier, brought suit as administrators of their son’s estate and in their own right. The third cause of action sought monetary recovery for emotional distress allegedly inflicted on plaintiffs by the Army’s suppression of information and release of fraudulent information subsequent to their son’s death. Reversing the district court’s dismissal of the complaint for lack of subject matter jurisdiction, the Court of Appeals held as follows with respect to the misrepresentation exception in § 2680(h): “The government contends that appellants’ claims of direct injury to themselves are nevertheless barred because they constitute an action for misrepresentation or deceit, as to which the government has not waived immunity, 28 U.S.C. § 2680(h).... Although the misrepresentation and deceit exceptions encompass both negligent and willful failure to provide accurate information, United States v. Neustadt, 366 U.S. 696, 702 [81 S.Ct. 1294, 1298, 6 L.Ed.2d 614] (1961), these exceptions have generally been applied only to actions for damages due to commercial decisions that were predicated on incorrect or incomplete information. Id. at 711 n.26 [81 S.Ct. at 1302 n.26]; Green v. United States, 629 F.2d 581, 583-85 (9th Cir. 1980). Because the context here is hardly commercial in nature, we do not believe that appellants’ claims are necessarily barred as an action for misrepresentation or deceit.” Id., 680 F.2d at 926. Following the guidance provided by Kohn, the instant complaint must be dismissed. While the present plaintiffs do not complain of misrepresentative “business dealings” with the Government, see United States v. Neustadt, supra, 366 U.S. at 711, n.26, 81 S.Ct. at 1302, n.26, it is clear that they seek damages for loss of an economic or financial interest, namely, the right to sue the manufacturer of Dapsone. Their reliance on the Government’s misinformation in" }, { "docid": "21881264", "title": "", "text": "pays the premium demonstrates that the FHA benefits and obligations are directed toward his benefit, along with this is the contractual obligation of FHA to propezdy appz-aise and inspect the dwelling. FHA has allegedly breached this basic contractual obligation and is answerable pursuant to 28 U.S.C. 1346(a)(2).- Plaintiffs’ Suggestions On Defendants’ Motion To Dismiss at 15 (filed April 27, 1971). The invalidity of plaintiffs’ premises fatally flaws their contract theories. First, the mortgagor does not pay the insurance premium; it is paid by the mortgagee. Secondly, the FHA has no contractual obligation to inspect and appraise the property. The primary and predominant objective of the FHA’s appraisal system is the protection of the Government and its insurance funds. United States v. Neustadt, 366 U.S. 696, 709, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). Inspection and appraisal is required by Congress and the relevant HUD and FHA regulations; it is not required by the contract of insurance. Since inspection and appraisal is not a contractual obligation, an improper inspection and appraisal cannot give rise to a claim for breach of contract and cannot support a third-party beneficiary theory- In rendering the partial summary judgment, the Court secondly considered plaintiffs’ claim for damages under subsection 1346(b) of the Tucker Act which grants district courts exclusive jurisdiction “of civil actions on claims against the United States, for money damages, accruing on and after January 1, 1945, for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable, to the claimant. . . .” Relying on 28 U.S.C. § 2680(h) (1970), which precludes recovery for misrepresentation, and United States v. Neustadt, supra, this Court held that the Government could not be held liable to the purchaser of a home who had relied on a negligently improper inspection and appraisal by the FHA. The Court concluded that plaintiffs had failed to state a claim under subsection 1346(b)" }, { "docid": "22305875", "title": "", "text": "of an agency relationship by United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The issues presented for our review with respect to the first two causes of action are jurisdictional; the issue with respect to the third cause of action is whether the court could properly, on the record before it, dismiss the complaint. Discussion As a preliminary matter, we note that HUD’s motion to dismiss did not state under which Federal Rule of Civil Procedure it was brought, and that the district court did not refer to any rule in granting the motion. Since the pleadings of both parties had been filed at the time the motion was made, we treat the motion as one under Fed.R.Civ.P. 12(c), for judgment on the pleadings. See Federal Commerce & Navigation Co. v. The M/V Marathonian, 392 F.Supp. 908, 909 n. 1 (S.D.N.Y.), aff'd, 528 F.2d 907 (2d Cir.1975), cert. denied, 425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d 799 (1976). As such, it encompassed both the motions to dismiss the first two causes of action for lack of jurisdiction, Amundson v. United States, 279 F.Supp. 779 (S.D.N.Y.1967), and the motion to dismiss the third cause of action, disposed of on the merits by the district court. See Federal Commerce & Navigation Co., 392 F.Supp. at 909 n. 1; 5 C. Wright & A. Miller, Federal Practice & Procedure § 1350, at 544 (1969); id. § 1367. With respect to the third cause of action, the district court considered, in addition to the pleadings, the affidavit of Nicholas E. Marchelos, former Deputy Director of the URA, which was submitted by the URA in opposition to HUD’s motion. Rule 12(c) permits the court, in its discretion and upon notice to all parties, to consider materials outside the pleadings. If it does, however, the motion is to be treated as one for summary judgment and disposed of as provided by Rule 56. FecLR.Civ.P. 12(c); see Parker v. CBS, 331 F.2d 297 (2d Cir.1964); 5 C. Wright & A. Miller, supra, § 1371. No issue with respect to notice" }, { "docid": "22305886", "title": "", "text": "6 L.Ed.2d 614 (1961) with Block v. Neal, 460 U.S. 289, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), or involved a “discretionary function” within the teaching of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), we view the record in the light most favorable to the parties opposing dismissal. See National Metropolitan Bank v. United States, 323 U.S. 454, 456-57, 65 S.Ct. 354, 355, 89 L.Ed. 383 (1945); Beal v. Missouri Pac. R.R., 312 U.S. 45, 51, 61 S.Ct. 418, 421, 85 L.Ed. 577 (1941); MacDonald v. DuMaurier, 144 F.2d 696, 700-01 (2d Cir. 1944); 5 C. Wright & A. Miller, supra, § 1368, at 690. The City and URA in the third-party complaint alleged only that HUD may have been “negligent.” HUD, in its motion to dismiss, stated in conclusory fashion that the negligence must have been misrepresentation and that “the alleged misrepresentations are HUD’s ap proval of the project without realizing the alleged loss of access to the subject property.” Apparently nothing more was before the district court. On this limited record, it was error to dismiss the claim. C. The Third Cause of Action The third cause of action alleged a principal-agent relationship between HUD and the URA. The City and URA allege that this relationship, if proven, would render HUD responsible to indemnify them in the event they are found liable to the plaintiffs. In opposing HUD’s motion to dismiss this cause of action, the URA submitted the affidavit of Nicholas E. Marchelos, its former Deputy Director, which alleged that “regulation by HUD [of the URA] was close and extremely detailed” and set forth some examples of the alleged regulation, including mandatory approval by HUD of acquisitions and prices, site development, and other matters pertaining to the Plan. HUD submitted no papers at all beyond the motion to dismiss, which alleged in conclusory fashion that “no agency relationship exists in fact or law.” The parties appear to agree, as do we, that United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976), governs this claim. Under" }, { "docid": "18730725", "title": "", "text": "of Investigation. The FBI’s duty to maintain reasonably accurate records does not require it to resolve disputes between Alexander and the California authorities. Second, even assuming that the FBI negligently breached a duty owed under section 534, Alexander’s complaint is barred under the FTCA, 28 U.S.C. §§ 1346(b), 2671-2680. Although his claim is based on negligence, it is actually a claim for “misrepresentation” and therefore barred by the immunity retained under 28 U.S.C. § 2680(h). See Bergman v. United States, 751 F.2d 314, 317 (10th Cir.1984) (a “negligence” claim against the Department of Commerce by a former employee alleging that the agency had unlawfully refused to “correct” his work classification records was actually a claim of “misrepresentation, deceit and slander” and therefore barred by section 2680(h)), cert. denied, — U.S. -, 106 S.Ct. 310, 88 L.Ed.2d 287 (1985); see also Guild v. United States, 685 F.2d 324, 325 (9th Cir.1982) (“misrepresentation” exception to the FTCA applies to claims for damages from commercial decisions based upon false or inadequate information provided by government). In United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), the Supreme Court recognized the broad reach of the “misrepresentation” exception of section 2680(h). In rejecting a FTCA complaint against the Federal Housing Administration for a negligently excessive appraisal, the Court noted: To say, as the Fourth Circuit did, that a claim arises out of “negligence,” rather than “misrepresentation,” when the loss suffered by the injured party is caused by the breach of a “specific duty” owed by the Government to him, i.e., the duty to use due care in obtaining and communicating information upon which that party may reasonably be expected to rely ..., is only to state the traditional and commonly understood legal definition of the tort of “negligent misrepresentation,” ... which there is every reason to believe Congress had in mind when it placed the word “misrepresentation” before the word “deceit” in § 2680(h). Id. at 706-07, 81 S.Ct. at 1300-01. Because Alexander’s claim under 28 U.S.C. § 534 fits squarely into the category of “negligent misrepresentation,” it is barred" }, { "docid": "10318671", "title": "", "text": "well as the government’s negligence in supervising the grading, caused loss of profits, business, customers and good will to Cross Brothers. The complaint stated that the “two graders breached their duty to the plaintiff arising out of the contractual relationship to provide proper and careful grading service” and that the grading was negligent and careless. Complaint, ¶¶ 6, 7, 8. The government filed a motion to dismiss, which technically should have been treated as a motion for judgment on the pleadings because it was filed after the answer. Fed. R.Civ.P. 12(h)(2). The government contended that the action was barred by 28 U.S.C. § 2680(h) (1976), which precludes recovery under the FTCA for “[a]ny claim arising out of misrepresentation.... ” The trial court accepted the government’s position and granted the motion to dismiss, reasoning that improper grading sounded in the tort of misrepresentation rather than negligence. Cross Brothers Meat Packers v. United States, 533 F.Supp. 1319, 1322 (E.D.Pa.1982). On March 29, 1982 Cross Brothers filed a motion for reconsideration, which the district court denied. 537 F.Supp. 204 (E.D.Pa.1982). Cross Brothers appeals. II. The breadth of the misrepresentation exception is defined not by the law of the state where the tort allegedly occurred, but by the Supreme Court’s interpretation of what Congress meant by the language used in section 2680(h). United States v. Neustadt, 366 U.S. 696, 706, 81 S.Ct. 1294, 1300, 6 L.Ed.2d 614 (1961). Until recently the Neustadt case was the leading authority on the scope of the misrepresentation exception. Neustadt was induced to purchase a home for less than fair market value because he relied on an appraisal statement furnished to the seller by the Federal Housing Authority (FHA). When structural defects materialized after he took up residence, Neustadt filed suit under the FTCA alleging that the FHA had negligently inspected and appraised the property. The Court held that the action was barred because it fell within the misrepresentation exception of section 2680(h). Id. at 711, 81 S.Ct. at 1302. Citing the Restatement of Torts § 552 which defines negligent misrepresentation, the Court said that a claim alleging that" }, { "docid": "22305883", "title": "", "text": "by the City and URA therefore depends upon whether the suit is in reality against HUD or is in fact against the United States. Whether this suit is against the United States or against HUD depends, in turn, upon whether recovery on the claim would come from funds in the control of HUD, “severed from Treasury funds and Treasury control,” Federal Housing Administration, Region No. 4, 309 U.S. at 250, 60 S.Ct. at 492, or would come from general treasury revenue. In the latter case, the suit in reality is against the United States. Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999,1006,10 L.Ed.2d 15 (1963) (quoting Land v. Dollar, 330 U.S. 731, 738, 67 S.Ct. 1009, 1012, 91 L.Ed. 1209 (1947)); S.S. Silberblatt, Inc., 608 F.2d at 36; Marcus Garvey Square, 595 F.2d at 1131. The crucial determination, then, is whether a judgment for damages in this cause of action would be satisfied from funds under HUD’s control, or from general treasury revenue. In the former instance, a valid waiver of sovereign immunity may be found to exist, and since, as discussed, the court had subject matter jurisdiction under section 1442, the first cause of action was properly before it. If the judgment is to be satisfied from general treasury revenue, however, there is no waiver of sovereign immunity beyond the Tucker Act, which waives immunity only to the extent of permitting suit in the Court of Claims. Because no finding was made as to the source of the monies that would be used to satisfy any judgment in this case, we remand to the trial court with instructions to determine this question and, accordingly, its jurisdiction over this cause of action. B. The Second Cause of Action The City and URA characterize their second cause of action as one in negligence. Brief for Defendant and Third-Party Plaintiff-Appellant City at 16; Brief for Defendant and Third-Party Plaintiff-Appellant URA at 16-17. We agree, and it therefore is governed by the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1982). The district court dismissed the cause on the grounds" }, { "docid": "22305879", "title": "", "text": "upon the nature of the cause of action before the court, we begin our analysis by examining the substance of the first cause of action. HUD — third-party defendant — contends that the first cause of action sounds in contract, and that only the Court of Claims may hear such cases against the United States when the amount at issue exceeds $10,000. This argument is based on the Tucker Act, 28 U.S.C. §§ 1346, 1491, which provides both subject, matter jurisdiction and a waiver of sovereign immunity for contract claims against the United States. The Tucker Act, however, permits such suit in the district court only when the amount in controversy is $10,000 or less; if a greater amount is involved, suit is permitted only in the Court of Claims. On the other hand, the City and URA — defendants and third-party plaintiffs — maintain that their claim “is not for breach of contract, in the traditional sense,” but is a claim that “HUD would breach obligations it owed to the City and URA under the [Federal Housing Act of 1949 as amended] if it evaded liability for an integral part of the project costs.” Brief for Defendant and Third-Party Plaintiff-Appellant City at 12; accord Brief for Defendant and Third-Party Plaintiff-Appellant URA at 11-16. We find the argument of the City and URA unpersuasive. No implied cause of action under Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) is alleged, nor is there any evidence that Congress intended a cause of action to be implied from the Act. Cf Marcus Garvey Square, Inc., 595 F.2d at 1130 (no cause of action implied in the National Housing Act). Based on our review herein, we are of the opinion that this cause of action sounds in contract. In the absence of contracts between HUD and the City and URA, it is likely that no cause of action would exist at all. While not determinative of the issue, we note that the third-party complaint stated that if the City and URA were found liable, “HUD will have breached" }, { "docid": "22305873", "title": "", "text": "by the plaintiffs were taken pursuant to the directions of HUD, under the contracts and the Federal Housing Act of 1949 as amended, 42 U.S.C. §§ 1450-1469c (“Act”), and that if the plaintiffs were to recover judgment against the City and URA the “third-party defendants [HUD] will have breached the Planning Contracts and Loan and Capital Contract with damages at least equal to the amount recovered by the plaintiffs.” The second cause of action alleged that HUD directed that changes be made in the Plan, that the City and URA relied on HUD’s expertise in preparing the Plan, and that if the City and URA were found liable to the plaintiffs, “third-party defendants [HUD] will have been negligent and will have breached their duties to the City and the [URA] and by reason of such negligence and breach of duties, the City and the [URA] will have suffered damages at least equal to the amount recovered by plaintiffs.” The third cause of action alleged that HUD “selected the [URA] as [HUD’s] representative and agent” and that therefore HUD was liable for the consequences of actions taken by the City and URA pursuant to the Plan. The district court found that the first cause of action was a “contract claim for a settlement in excess of $10,000” and therefore that, under 28 U.S.C. §§ 1346, 1491 (1982), only the Court of Claims had jurisdiction of the cause. The court held that the second cause of action sounded in negligence and was barred by the Federal Tort Claims Act provision for “misrepresentation,” 28 U.S.C. § 2680(h) (1982), see United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), or alternatively was barred by the “discretionary function” doctrine of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) and 28 U.S.C. § 2680(a) (1982). The court dismissed the third cause of action because “[t]he ... federal financial assistance [that] was extended to the local agency cannot constitute the supervision of the day-to-day operation of the agency by the federal government” required for a finding" }, { "docid": "13825289", "title": "", "text": "disbursal of funds for the subcontractors, we believe that HUD breached its responsibility of using due care on behalf of the contractors and therefore has violated the standard and made itself liable for the damages that have been incurred by the plaintiff. App. at A40. The government argued that no matter how JM attempted to characterize its action, the complaint was an action for injuries resulting from a negligent misrepresentation by omission of the government. As such, a suit for recovery under the FTCA was barred by 28 U.S.C. § 2680(h) (1976). See United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961). The district court concluded that JM’s claim was one for misrepresentation and that it fell within the misrepresentation exception to the FTCA, and thus the court granted HUD’s motion to dismiss. This appeal followed. II A On appeal both JM and HUD renew the arguments they made before the district court. The government further argues that even if a non-misrepresentation claim arose out of the transaction, where the “government’s misrepresentation of a material fact is just one of the factors relied upon to maintain the suit for economic injury,” then the “claim arises out of misrepresentation.” A review of the cases makes plain that the government’s arguments are incorrect and that subject matter jurisdiction exists in this case. The Supreme Court in Block v. Neal,U.S. -, 103 S.Ct. 1089, 75 L.Ed.2d 67 (1983), restated the principles to be used in determining the applicability of the 28 U.S.C. § 2680(h) (1976) misrepresentation “exception” to otherwise assertable causes of action under the FTCA. In that case Neal contracted with Home Marketing Associates (HMA) for the construction of a prefabricated house which required HMA’s work to conform to plans approved by Farmers Home Administration (“FmHA”). It also granted FmHA the right to inspect and test all materials and workmanship and reject any that were defective. Neal simultaneously entered into a deed of trust with FmHA and signed a promissory note to cover the construction expenses. During construction an FmHA official inspected the site three times. After" }, { "docid": "22305874", "title": "", "text": "that therefore HUD was liable for the consequences of actions taken by the City and URA pursuant to the Plan. The district court found that the first cause of action was a “contract claim for a settlement in excess of $10,000” and therefore that, under 28 U.S.C. §§ 1346, 1491 (1982), only the Court of Claims had jurisdiction of the cause. The court held that the second cause of action sounded in negligence and was barred by the Federal Tort Claims Act provision for “misrepresentation,” 28 U.S.C. § 2680(h) (1982), see United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), or alternatively was barred by the “discretionary function” doctrine of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953) and 28 U.S.C. § 2680(a) (1982). The court dismissed the third cause of action because “[t]he ... federal financial assistance [that] was extended to the local agency cannot constitute the supervision of the day-to-day operation of the agency by the federal government” required for a finding of an agency relationship by United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976). The issues presented for our review with respect to the first two causes of action are jurisdictional; the issue with respect to the third cause of action is whether the court could properly, on the record before it, dismiss the complaint. Discussion As a preliminary matter, we note that HUD’s motion to dismiss did not state under which Federal Rule of Civil Procedure it was brought, and that the district court did not refer to any rule in granting the motion. Since the pleadings of both parties had been filed at the time the motion was made, we treat the motion as one under Fed.R.Civ.P. 12(c), for judgment on the pleadings. See Federal Commerce & Navigation Co. v. The M/V Marathonian, 392 F.Supp. 908, 909 n. 1 (S.D.N.Y.), aff'd, 528 F.2d 907 (2d Cir.1975), cert. denied, 425 U.S. 975, 96 S.Ct. 2176, 48 L.Ed.2d 799 (1976). As such, it encompassed both the motions to dismiss the" }, { "docid": "22305884", "title": "", "text": "may be found to exist, and since, as discussed, the court had subject matter jurisdiction under section 1442, the first cause of action was properly before it. If the judgment is to be satisfied from general treasury revenue, however, there is no waiver of sovereign immunity beyond the Tucker Act, which waives immunity only to the extent of permitting suit in the Court of Claims. Because no finding was made as to the source of the monies that would be used to satisfy any judgment in this case, we remand to the trial court with instructions to determine this question and, accordingly, its jurisdiction over this cause of action. B. The Second Cause of Action The City and URA characterize their second cause of action as one in negligence. Brief for Defendant and Third-Party Plaintiff-Appellant City at 16; Brief for Defendant and Third-Party Plaintiff-Appellant URA at 16-17. We agree, and it therefore is governed by the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680 (1982). The district court dismissed the cause on the grounds that it fell either within the statutory exception for “misrepresentation,” 28 U.S.C. § 2680(h) (1982); see United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), or within the exception for “discretionary functions,” 28 U.S.C. § 2680(a) (1982); see Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953). Since the only applicable grant of subject matter jurisdiction or waiver of sovereign immunity for such a claim is contained in the Tort Claims Act, the effect of either one of the district court’s findings would be to deprive the court of power to adjudicate the cause. We find the record insufficiently complete, at this juncture, to justify dismissal on either of the grounds relied upon by the district court. The third-party plaintiffs made no specification of negligence beyond the assertion in the third-party complaint that if they were found liable, HUD must be found negligent. While it may be that this claim is one for “misrepresentation,” compare United States v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294," }, { "docid": "18730726", "title": "", "text": "v. Neustadt, 366 U.S. 696, 81 S.Ct. 1294, 6 L.Ed.2d 614 (1961), the Supreme Court recognized the broad reach of the “misrepresentation” exception of section 2680(h). In rejecting a FTCA complaint against the Federal Housing Administration for a negligently excessive appraisal, the Court noted: To say, as the Fourth Circuit did, that a claim arises out of “negligence,” rather than “misrepresentation,” when the loss suffered by the injured party is caused by the breach of a “specific duty” owed by the Government to him, i.e., the duty to use due care in obtaining and communicating information upon which that party may reasonably be expected to rely ..., is only to state the traditional and commonly understood legal definition of the tort of “negligent misrepresentation,” ... which there is every reason to believe Congress had in mind when it placed the word “misrepresentation” before the word “deceit” in § 2680(h). Id. at 706-07, 81 S.Ct. at 1300-01. Because Alexander’s claim under 28 U.S.C. § 534 fits squarely into the category of “negligent misrepresentation,” it is barred by 28 U.S.C. § 2680(h). II. Privacy Act Claim. Alexander also argues that the district court had subject matter jurisdiction over his Privacy Act claim that the FBI failed to maintain an accurate record of his arrests. He relies on 5 U.S.C. § 552a(g), which provides for a cause of action against any agency maintaining prejudicially inaccurate records concerning an individual. Alexander, however, overlooks the broad “general exemptions” to Privacy Act claims found in 5 U.S.C. § 552a(j). This section expressly prohibits suits against an agency for passing inaccurate information to a third party, if appropriate regulations have been issued. Pursuant to section 552a(j), the Department of Justice issued 28 C.F.R. § 16.96(e), which exempts the Identification Division Records System of the FBI from, inter alia, 5 U.S.C. § 552a(g). Because the Identification Division of the FBI maintains Alexander’s record and because the Department of Justice has promulgated rules exempting the records system of that division from 5 U.S.C. § 552a(g), Alexander is barred from taking advantage of the civil remedies afforded by the Privacy" } ]

[ { "docid": "8238884", "title": "", "text": "judgment to HUD, ruling that Douglas did not suffer an adverse employment action. Douglas appeals; our review is de novo, “applying the same standards as the district court.” Tao v. Freeh, 27 F.3d 635, 638 (D.C.Cir.1994). II. In order to present a viable claim of employment discrimination under Title VII, a plaintiff must show he suffered an adverse employment action. See, e.g., Ginger v. Dist. of Columbia, 527 F.3d 1340, 1343 (D.C.Cir.2008). An “adverse employment action” is “ ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.’ ” Taylor v. Small, 350 F.3d 1286, 1293 (D.C.Cir.2003) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). An employee must “experience!;] materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002); see also Holcomb v. Powell, 433 F.3d 889, 902 (D.C.Cir.2006) (distinguishing between “purely subjective injuries” which are not actionable, and “objectively tangible harm,” which is). Further, “[a] tangible employment action in most cases inflicts direct economic harm.” Burlington Indus., Inc., 524 U.S. at 762, 118 S.Ct. 2257 (emphasis added). Thus, “not everything that makes an employee unhappy is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C.Cir.2001). Because “significant” and “objectively tangible” harm is required, performance evaluations ordinarily are not actionable under Title VII; “[t]he result of an evaluation is often speculative, making it difficult to remedy. For example, a single poor evaluation may drastically limit an employee’s chances for advancement, or it may be outweighed by later evaluations and be of no real consequence.” Id. See also Taylor, 350 F.3d at 1293 (“[F]ormal criticism or poor performance evaluations are not necessarily adverse actions and they should not be considered such if they did not affect the employee’s grade or salary.”). On the other hand, “a bonus is a tangible, quantifiable award, more analogous to one’s salary or" } ]

[ { "docid": "591131", "title": "", "text": "practice by this subchapter.”) (emphasis added). The parties do not dispute that Clayton was an employee of the District. Clayton argues, however, that she was also an employee of the DCNG. In her view, the District and the DCNG were “joint employers for Title VII purposes,” and thus can both be held liable for the alleged employment discrimination. Dkt. 60 at 1. The parties have addressed this issue before. In its opposition to Clayton’s motion for leave to'file her Second Amended Complaint, the DCNG argued that an amendment to add the Title VII claims against it would be futile because the proposed amended pleading did not allege that Clayton was an “employee[ ], applicant] for employment, [or] former employee[ ]” of th.e DCNG. Dkt. 43 at 4. Concluding that Clayton’s .Second Amendr ed Complaint alleges “sufficient facts.to show that Clayton was either an employee of the DCNG or a joint employee of the District and the DCNG,” Dkt. 44 at 9-10, Chief Judge Roberts rejected the DCNG’s argument and granted Clayton leave to amend. Among other things, the Court observed that the Second Amended Complaint alleges that DCNG personnel influenced Clayton’s hiring and performance evaluation and had the power to “initiate” disciplinary proceedings against- her. Id. at 11; see Dkt. 45 ¶¶ 7,10,13, 83-84. The Court also noted that the Second Amended Complaint alleges that Clayton reported to both .District and DCNG personnel during her ■ employment and that “DC Government Operations” — of which Clayton was director — “is simultaneously a Directorate within Joint Force Head Quarters, DC National Guard and an agency of the Government of the District of. Columbia.” Dkt. 45 ¶ 9. As courts have repeatedly observed, Title VII offers no meaningful definition- of “employee” or “employer.” See, e.g., Juino v. Livingston Parish Fire Dist., 717 F.3d 431, 434 (5th Cir.2013); Gulino v. N.Y. State Educ. Dep’t, 460 F.3d 361, 371 (2d Cir.2006). The Supreme Court, accordingly, has instructed that courts should look to “traditional agency law principles.” Nationwide Mut. Ins. Co. v. Darden, 503 U.S. 318, 323, 112 S.Ct. 1344, 117 L.Ed.2d 581 (1992) (construing" }, { "docid": "17075956", "title": "", "text": "of fact could find objectively tangible harm.” Id. In the retaliation context the “adverse action” concept has a broader meaning. There, actions giving rise to claims are “not limited to discriminatory actions that affect the terms and conditions of employment,” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 64, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), but reach any harm that “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination,” id. at 68, 126 S.Ct. 2405. See Baird, 744 F.Supp.2d at 290-91, 292. The district court found that Baird’s allegations fell short of these threshold requirements, as to both discrimination and retaliation. Plaintiffs claims here are relatively unusual in that she does not assert that discriminatory intention brought about the underlying acts (what we’ve called the discrete episodes), and even as to retaliation she soft-pedals her claim of retaliatory intent. Rather, she argues that such discriminatory and retaliatory intent caused the PBGC’s failure to respond to her complaints about them and to take corrective action against the employees who, as she sees it, had traduced or abused her. Thus the case is in important respects like Rochon v. Gonzales, 438 F.3d 1211 (D.C.Cir. 2006), where the plaintiff (an FBI agent) alleged that the FBI had received credible death threats against himself and his wife, made by an inmate in a federal prison, and that the FBI, out of discriminatory and retaliatory motives, had failed to investigate or take any steps to protect him. Id. at 1213-14. There was no suggestion that the FBI was responsible for the threatening inmate’s behavior, but (focusing on the retaliation) we found that allegations of an unlawfully motivated failure to investigate the threat or to protect the Rochons were sufficient to survive a motion under Rule 12(b)(6). Id. at 1219-20. Of course death threats are extreme, but we think the Rochon principle may be generalized, though slightly differently with respect to discrimination and retaliation. Stated in a form most favorable to plaintiff, a claim of discriminatory or retaliatory failure to remediate may be sufficient if" }, { "docid": "3498964", "title": "", "text": "draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, - U.S. -, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). III. 1. CEPA Claim (Count I) With regard to Clayton’s CEPA claim, Mooney argues that the Complaint fails to state a claim for a CEPA violation. Mooney contends that Plaintiffs allegations amount to nothing more than private labor issues, and that her PERC claim merely addressed a private labor dispute. A CEPA plaintiff must prove four elements: (1) he or she reasonably believed that his or her employer’s conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity ...; (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Dzwonar v. McDevitt, 177 N.J. 451, 462, 828 A.2d 893 (2003). Clayton cannot establish the third and fourth prongs of this test. In essence, Clayton’s is that she filed an “unfair labor claim” and then Defendants retaliated against her by continuing to harass her. The facts, as set out above, do not plead “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 129 S.Ct. at 1949 (2009). The Court cannot discern, other than personalized gripes, what actions Clayton described in the claim. Further, it cannot determine with certainty when Plaintiff filed the complaint, who authored the complaint, and/or if the grievance procedures are ongoing. Without alleging that a she performed a whistle-blowing activity, Clayton’s claim cannot precede. Further, even if Clayton made out that she performed a whistle-blowing activity, she could not show a causal connection between her activity and Defendants’ purported retaliation. Other than timing, which itself suspect because it is uncertain when the “unfair labor” claim was filed, Plaintiff has not alleged any facts that could lead to an inference of causation. Instead, Clayton avers that Nolan had been harassing her because of his" }, { "docid": "17234091", "title": "", "text": "plaintiff was reassigned to OTPP in June 2002, “where her duties were purely clerical in nature.” (Pl.’s Opp. at 11.) To make out a prima facie claim for retaliation, plaintiff must show: “(1) that she engaged in a statutorily protected activity; (2) that the employer took an adverse personnel action; and (3) that a causal connection existed between the two.” Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999) (internal citation and quotation marks omitted). Plaintiffs opposition references certain instances of protected activity in which she engaged, including the filing of formal EEO complaints on May 9, 2001 and April 18, 2003. (Pl.’s Opp. at 4, 6, 18.) Four of the alleged retaliatory acts — the FPS incident, withdrawal of the vacancy announcement, the instruction to withdraw from job-related classes, and reclassification of plaintiffs position — pre-date the May 9, 2001 ad ministrative complaint, and thus, cannot be the subject of a retaliation claim. Accordingly, plaintiff has failed to establish a causal connection between these alleged retaliatory acts and any protected activity. Brody, 199 F.3d at 452. Plaintiff also relies on Mr. Reliefs negative evaluation as a basis for her retaliation claim. Plaintiff alleges that, despite receiving generally positive narrative comments from Mr. Kellett on two prior performance appraisals, she received negative comments on her October 4, 2001 appraisal. To establish an adverse personnel action in the absence of diminution of pay or benefits, plaintiff must show “materially adverse consequences affecting the terms, conditions, or privileges of employment or her future employment opportunities such that a reasonable trier of fact could conclude that the plaintiff has suffered objectively tangible harm.” Brody, 199 F.3d at 457. “Mere idiosyncrasies of personal preference are not sufficient to create an injury.” Id. See also Jones v. Billington, 12 F.Supp.2d 1, 13 (D.D.C.1997) (“[N]ot everything that makes an employee unhappy is an actionable adverse action.”) (citation and quotation marks omitted), affd without op., 1998 WL 389101, at *1 (D.C.Cir. June 30,1998). An “employment decision does not rise to the level of an actionable adverse action ... unless there is a tangible change in the duties or" }, { "docid": "18250971", "title": "", "text": "appears that plaintiff has failed to exhaust her administrative remedies, the Court will dismiss plaintiffs fourth claim. See Jordan v. Evans, 355 F.Supp.2d 72, 84 (D.D.C.2004) (dismissing plaintiffs Title VII claims where there was “no indication that she has received a ‘right to sue’ letter from DOC or the EEOC and her complaint in this case was filed before the 180-day period had expired”). II. Plaintiffs Properly Exhausted Discrimination Claim Acknowledging that plaintiff has properly exhausted her administrative remedies for her second discrimination claim, defendant argues that it must nonetheless be dismissed because her probation notice does not constitute an actionable adverse action. “To establish a prima facie case of discrimination, a claimant must show that ‘(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.’ ” Wiley, 511 F.3d at 155 (quoting Brown v. Brody, 199 F.3d 446, 452 (D.C.Cir.1999)). If, based on the allegations in the complaint and drawing all inferences consistent with those allegations in plaintiffs favor, it appears beyond doubt that plaintiff would be unable to satisfy one or more of these prima facie elements, then the Court must grant defendant’s motion for judgment on the pleadings. See Rattigan, 503 F.Supp.2d at 72. “[A]n employee suffers an adverse employment action if he experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Wiley, 511 F.3d at 160-61 (quoting Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir. 2002)). Plaintiff was obviously greatly upset by the probation notice, but “not everything that makes an employee unhappy is an actionable adverse action.” Russell v. Principi, 257 F.3d 815, 818 (D.C.Cir.2001). Regarding disciplinary actions, like plaintiffs probation notice, “only disciplinary actions that result in a tangible harm, such as a change in grade, salary, or other benefits, rise to the level of adverse employment actions.” Everson v. Medlantic Healthcare Group, 414 F.Supp.2d 77, 83 (D.D.C.2006) (citing Broderick v. Donaldson, 437 F.3d 1226, 1233 n." }, { "docid": "17405557", "title": "", "text": "“assume[s] the truth of all well-pleaded allegations.” Warren v. District of Columbia, 353 F.3d 36, 39 (D.C.Cir.2004). The court may consider “only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [it] may take judicial notice.” EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624 (D.C.Cir.1997). A. Causal connection between protected activity and adverse employment action The District argues that Clayton failed to allege sufficient facts in Counts One, Two, and Three to demonstrate that there was a causal connection between Clayton’s protected activities and the adverse employment action. District’s Mot. at 1. Clayton must allege that there is a causal link between her supervisors’ threats of termination and her ultimate termination on the one hand and her protected disclosures on the other hand to state a claim of retaliation under the DC-WPA and DC-FCA or a claim of wrongful termination under D.C. common law . Despite the plaintiffs burden, it is well-established that “[a] plaintiff alleging retaliation faces a low hurdle at the motion to dismiss stage.” Teliska v. Napolitano, 826 F.Supp.2d 94, 100 (D.D.C.2011) (collecting cases). With respect to causation, “[a]t this early stage of the proceedings, plaintiff can meet her prima facie burden of causation simply by alleging that the adverse actions [that were supported by facts in her complaint] were caused by her protected activity.” Vance v. Chao, 496 F.Supp.2d 182,185,187 (D.D.C.2007). A plaintiff may show causation through direct evidence or circumstantial evidence, such as by showing that the employer had knowledge of the employee’s protected conduct and a close temporal proximity between the employer’s knowledge and the adverse actions. Rattigan v. Gonzales, 503 F.Supp.2d 56, 77 (D.D.C.2007); see also Johnson, 935 A.2d at 1120-21. Clayton argues that her amended complaint alleges sufficient facts to create an inference that her reclassification and termination were in retaliation for her protected conduct. Clayton’s amended com plaint supports a finding that the District knew of Clayton’s protected conduct and that there was a close temporal relationship between that knowledge and the adverse employment action. The amended" }, { "docid": "591119", "title": "", "text": "reporting the sexual harassment complaint and that this retaliation led to Clayton’s eventual reclassification and termination. 3. Clayton’s Title VII Sex Discrimi- . nation Claim Clayton also alleges that she was “terminated from employment because of her gender” and that she “received different treatment from similarly 'situated employees outside the protected class.” Dkt. 45 ¶¶ 128-29. According to the Complaint, “Ms. Clayton’s predecessor, Anthony De-vassey, a male, continued in his tenure as a Career Service employee,” while Clayton “was forced to be reclassified.” Id. ¶ 130. Additionally, Devassey “was permitted to dictate his own incentive awards to employees,” while “in the case of Ms. Clayton, the employee incentive awards were dictated to her.” Id. ¶ 131. The District argues that these allegations are insufficient to state a claim under Title VII. It observes that Devassey was himself terminated in 2008 (Dkt. 45.¶25) and that Devassey was not similarly situated to Clayton, in any event, because he served as Director of D.C. Government Operations before the August 2010 opinion from the D.C. Attorney General clarified the scope of the Director’s responsibilities. Dkt. 47-1 at 12. Thus, according to the District, Clayton has not alleged a claim based on disparate treatment. Id. Neither of these facts, however, requires dismissal of Clayton’s sex discrimination claim at this point in the proceeding. The Complaint does, as the District emphasizes, allege that Devassey was also terminated. Dkt. 45 ¶ 25. But that fact does not show, .as the District would have it, that Clayton and Devassey received the same treatment. According to the Complaint, Clayton was reclassified as, an employee in the Management Supervisory Service, while Devassey remained in the Civil Service throughout his tenure. Id. ¶ 130. As a result, unlike Clayton, Devas-sey could only be discharged for cause. The District has cited no authority suggesting that reassignment of a tenured civil sérvice employee'to a non-tenured position fails to rise to the level of an “adverse employment action.” Indeed, removal of an important benefit like tenure appears to fall well within the range of sanctions that are cognizable under Title VIL See, e.g., Okruhlik" }, { "docid": "17405558", "title": "", "text": "at the motion to dismiss stage.” Teliska v. Napolitano, 826 F.Supp.2d 94, 100 (D.D.C.2011) (collecting cases). With respect to causation, “[a]t this early stage of the proceedings, plaintiff can meet her prima facie burden of causation simply by alleging that the adverse actions [that were supported by facts in her complaint] were caused by her protected activity.” Vance v. Chao, 496 F.Supp.2d 182,185,187 (D.D.C.2007). A plaintiff may show causation through direct evidence or circumstantial evidence, such as by showing that the employer had knowledge of the employee’s protected conduct and a close temporal proximity between the employer’s knowledge and the adverse actions. Rattigan v. Gonzales, 503 F.Supp.2d 56, 77 (D.D.C.2007); see also Johnson, 935 A.2d at 1120-21. Clayton argues that her amended complaint alleges sufficient facts to create an inference that her reclassification and termination were in retaliation for her protected conduct. Clayton’s amended com plaint supports a finding that the District knew of Clayton’s protected conduct and that there was a close temporal relationship between that knowledge and the adverse employment action. The amended complaint alleges that Albert and General Schwartz were personal friends. Am. Compl. ¶ 77. It also suggests that Albert refused to meet with Clayton until after her termination was effective. Id. Considered in the light most favorable to Clayton, these allegations and the reasonable inferences drawn from them support a finding that Albert knew of Clayton’s protected conduct. The temporal proximity between Clayton’s protected activities and her reclassification and termination also support Clayton’s argument that the adverse employment actions were retaliatory. Clayton alleges that she engaged in protected conduct through August 2010. See id. ¶42. Clayton’s position was reclassified the next month and she was notified of her termination in October 2010. Id. ¶¶ 74, 76. The passage of merely two months between Clayton’s protected conduct and the reclassification and termination can be sufficient to establish a causal connection. See Booth v. District of Columbia, 701 F.Supp.2d 73, 79 (D.D.C.2010). Clayton’s retaliation and wrongful termination claims will not be dismissed for failure to state a claim. B. DC-WPA claim Clayton claims that reclassifying the Director" }, { "docid": "13174156", "title": "", "text": "Estes stated that she had “no knowledgé as to the claims and allegations that Carmen Planadeball ha[d] brought against [Wynd-ham] in any forum.” Moreover, Planade-ball admitted that she does not know what information, if any, Estes had with respect to her litigation. On this record, there is simply no evidence from which a reasonable jury could infer that Estes had knowledge of Planadeball’s protected activity. Therefore, Planadeball cannot establish the third element of a prima facie case of retaliátion, a causal nexus between filing her complaint and Estes’s actions. See Alvarado v. Donahoe, 687 F.3d 453, 459 (1st Cir.2012) (“[I]f a supervisor or other employee is unaware of the fact that a plaintiff engaged in protected conduct, any actions attributable to him could not plausibly have been induced by retaliatory motives”). 3. Maley’s Threats Finally, Wyndham contends, and the district court found, that Maley’s threats toward Planadeball after she returned from medical leave in April 2011 were not a material adverse action. Maley criticized Planadeball about her work performance, screamed at her in front of her colleagues, and made multiple threats to fire her. Planadeball argues that Maley’s conduct should be considered a material adverse action, because, as the Supreme Court stated in Burlington Northern, material adverse actions are “not limited to discriminatory actions that affect the terms and conditions of employment,” nor are they restricted to “ultimate employment decisions] ... such as hiring, granting leave, discharging, promoting, and compensating.” 548 U.S. at 60, 64, 126 S.Ct. 2405 (internal quotation marks omitted). Rather, they include all actions that “could well dissuade a reasonable worker from making or supporting a charge of discrimination.” Id. at 57, 126 S.Ct. 2405. This standard is phrased “in general terms because the significance of any given act of retaliation will often depend upon the particular circumstances. Context matters.” Id. at 69,126 S.Ct. 2405. We agree with Planadeball that a juror could reasonably conclude that Ma-ley’s multiple threats to fire her constitute a material adverse action. Construing all facts in Planadeball’s favor, Maley told her to “step up or [] step out,” told her coworker Saliceti" }, { "docid": "591117", "title": "", "text": "give rise to an inference of causation”) (internal quotation marks and citation omitted); Glenn v. Bair, 643 F.Supp.2d 23, 42-43 (D.D.C.2009) (no causation where “plaintiff provide[d] no direct evidence of a causal relationship” -and at least six months elapsed between protected activity and adverse action); McDowell v. N. Shore Long Island Jewish Health Sys., Inc., 788 F.Supp.2d 78, 83 (E.D.N.Y.2011) (finding no causation where “the alleged retaliatory act occurred more than three months after the alleged protected activity, and nothing in the complaint aside from the temporal proximity between these two events shows a retaliatory motive”). These cases are inapposite. Here, Clayton does not rely “mere[ly]” (Breeden, 532 U.S. at 273, 121 S.Ct. 1508) on the fact that she made a sexual harassment complaint and was terminated some months later to support an inference of causation. Instead, she alleges several additional facts that render her allegation of causation plausible. For example, as discussed above, Clayton alleges that “days after” she reported the sexual harassment complaint, “General Schwartz confronted Ms. Clayton in her office, threatened to terminate her employment, and stated, “weT see who’s sitting in that seat on October 1st.’ ” Dkt. 45 ¶ 69. About a month later, on May 20, 2010, General Schwartz’s staff allegedly “Solicited the advice of the D.C. Human Resources Department’s General Counsel regarding General Schwartz’s administrative authority over the employees of the Government Operations Division.” Id. ¶ 70. General Schwarz'purportedly repeated his threat (“we’ll see who’s sitting in that seat on October 1st”) on or around September 13, 2010, which was shortly after the D.C. Attorney General issued his opinion. Id. ¶ 73. Finally, Clayton alleges that Neil Albert, the City Administrator and the official who notified her of her termination, is a personal friend of General Schwartz, and that Albert and Schwartz discussed Clayton’s “continued employment with Defendants.” Id. ¶ 77. “Construing the complaint liberally and giving [Clayton] the benefit of all inferences that can be derived from the facts alleged,” Browning v. Clinton, 292 F.3d 235, 240 (D.C.Cir.2002) (internal quotation marks omitted), the Complaint plausibly alleges that Defendants retaliated against Clayton for" }, { "docid": "18204080", "title": "", "text": "3. No Reasonable Fact Finder Could Conclude that the Internal Investigation Was “Materially Adverse” Herbert claims that the investigation conducted by Cave at the tail-end of 2006 was a materially adverse employment action. For various reasons, whether considered together or independently, no reasonable fact finder could find that the investigation would dissuade a reasonable employee from making or supporting a charge of discrimination: the investigation involved little more than interviews with various Paint Shop employees; it is undisputed that Cave’s report never proceeded beyond draft form; even assuming that Herbert was the “target,” there is little, if any, evidence that anyone apart from Cave and Gleich knew that; and the preliminary recommendations were limited to things like group-based diversity training with no recommendations specifically directed towards Herbert. See supra Part II.E. Herbert simply “offerfs] no evidence showing that the [ ] investigation ... affected [his] employment in any meaningful way.” Halcomb, 563 F.Supp.2d at 246; see also Brown, 674 F.Supp.2d at 191-92 (despite plaintiffs allegations that an investigation “cast ... a shadow” on her employment, caused her emotional distress, and made co-workers reluctant to work with her, she failed to establish that it had any objective impact on her employment). Accordingly, the AOC is entitled to summary judgment on this claim as well. B. No Reasonable Fact Finder Could Conclude that the Challenged Employment Actions Were Sufficiently Adverse to Support Herbert’s Discrimination Claims As in the retaliation context, in order to present a viable claim for employ ment discrimination under Title VII, a plaintiff must show that he or she suffered an “adverse employment action.” Ginger v. District of Columbia, 527 F.3d 1340, 1343 (D.C.Cir.2008), cert. denied, — U.S. -, 129 S.Ct. 930, 173 L.Ed.2d 112 (2009). However, the standard is not identical. In this context, “[a]n employee must experience materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009) (internal quotation marks and notations omitted) (emphasis added). Ordinarily, “[a] tangible employment action ... inflicts" }, { "docid": "591130", "title": "", "text": "present evidence showing that its notification procedures satisfied the Harris requirements. It has not done so yet, however, and Plaintiffs declaration — like the declaration in Harris — is sufficient to raise a factual issue as to the adequacy of the DCNG’s notification re garding the EEO.C time limits. See id, at 445. For this .reason, the Court cannot grant summary judgment on the ground of Plaintiffs alleged failure to exhaust administrative remedies. 3. Whether the DCNG and the District Are Joint Employers The DCNG finally argues that Clayton' was not an “employee” of the DCNG and, therefore, cannot bring suit against it under Title VII. See 42 U.S.C. § 2000e-16 (“All personnel actions affecting employees or applicants for employment ... in military departments [or] in executive agencies ... shall made be free from discrimination based on ,.. sex _”) (emphasis added); ef, 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer to discriminate ... because [an employee or applicant for employment] has opposed any practice made an unlawful employment practice by this subchapter.”) (emphasis added). The parties do not dispute that Clayton was an employee of the District. Clayton argues, however, that she was also an employee of the DCNG. In her view, the District and the DCNG were “joint employers for Title VII purposes,” and thus can both be held liable for the alleged employment discrimination. Dkt. 60 at 1. The parties have addressed this issue before. In its opposition to Clayton’s motion for leave to'file her Second Amended Complaint, the DCNG argued that an amendment to add the Title VII claims against it would be futile because the proposed amended pleading did not allege that Clayton was an “employee[ ], applicant] for employment, [or] former employee[ ]” of th.e DCNG. Dkt. 43 at 4. Concluding that Clayton’s .Second Amendr ed Complaint alleges “sufficient facts.to show that Clayton was either an employee of the DCNG or a joint employee of the District and the DCNG,” Dkt. 44 at 9-10, Chief Judge Roberts rejected the DCNG’s argument and granted Clayton leave to amend. Among" }, { "docid": "591116", "title": "", "text": "VII because Clayton’s protected activity — reporting the administrative assistant’s sexual harassment claim — occurred roughly six months before Clayton was fired. In the District’s view, a gap of more than “3-4 months” between protected activity and adverse action cannot “support an inference of causation.” Dkt. 47-1 at 9. The District relies on cases in which plaintiffs argued unsuccessfully that the temporal proximity of their protected activity to an adverse action, without more, was sufficient to state a plausible claim under Title VII. See Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 273-74, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) (“[t]he cases that accept mere temporal proximity between an employer’s knowledge of protected activity and an adverse employment action as sufficient evidence of causality ... uniformly hold that the temporal proximity must be ‘very close’ ”); Holcomb v. Powell, 433 F.3d 889, 903 (D.C.Cir.2006) (finding causation but noting that “viewed in isolation,” complaint filed more than two years before adverse employment action “would not establish the close temporal proximity we have previously required to give rise to an inference of causation”) (internal quotation marks and citation omitted); Glenn v. Bair, 643 F.Supp.2d 23, 42-43 (D.D.C.2009) (no causation where “plaintiff provide[d] no direct evidence of a causal relationship” -and at least six months elapsed between protected activity and adverse action); McDowell v. N. Shore Long Island Jewish Health Sys., Inc., 788 F.Supp.2d 78, 83 (E.D.N.Y.2011) (finding no causation where “the alleged retaliatory act occurred more than three months after the alleged protected activity, and nothing in the complaint aside from the temporal proximity between these two events shows a retaliatory motive”). These cases are inapposite. Here, Clayton does not rely “mere[ly]” (Breeden, 532 U.S. at 273, 121 S.Ct. 1508) on the fact that she made a sexual harassment complaint and was terminated some months later to support an inference of causation. Instead, she alleges several additional facts that render her allegation of causation plausible. For example, as discussed above, Clayton alleges that “days after” she reported the sexual harassment complaint, “General Schwartz confronted Ms. Clayton in her office, threatened to" }, { "docid": "18242253", "title": "", "text": "treatment claims must be dismissed because the alleged acts do not constitute “adverse employment action[s]” under Title VII. (Def.’s Mot. at 18-21.) Defendant challenges plaintiffs allegations that the following were adverse actions: (1) the agency’s failure to conduct a timely and adequate investigation of her complaints of receiving inappropriate emails from other employees and from opposing counsel representing the agency in plaintiffs union grievance (Compl. ¶¶ 27, 30, 31, 33, 37); (2) PBGC’s “fail[ure] to take corrective action” in response to Ruben Moreno yelling at her while she was taking his deposition in a co-worker’s EEO case (id. ¶ 55); and (3) PBGC’s selective attempt to obtain plaintiffs signature acknowledging receipt of an email titled: “Inappropriate use of PBGC resources.” (Id. ¶ 28.) To succeed on a claim of discrimination under Title VII, a plaintiff has the initial burden of establishing a prima facie case of discrimination by showing that “(1) she is a member of a protected class; (2) she suffered an adverse employment action; and (3) the unfavorable action gives rise to an inference of discrimination.” Stella v. Mineta, 284 F.3d 135, 145 (D.C.Cir.2002); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). To show an adverse action, plaintiff must show “a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing significant change in benefits.” Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009) (citation and internal quotation marks omitted). “[A]n employee suffers an adverse employment action if he experiences materially adverse consequences affecting the terms, conditions, or privileges of employment or future employment opportunities such that a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002) (citing Brown v. Brody, 199 F.3d 446, 457 (D.C.Cir.1999)). In most eases, a tangible employment action “ ‘inflicts direct economic harm.’ ” Douglas, 559 F.3d at 552 (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). However, where the alleged significant change in employment status" }, { "docid": "14058036", "title": "", "text": "that she was dating Gonzalez, a coworker; (2) Tanner threatened to fire her when Soto went to Human Resources to complain about a female coworker taking Soto’s earplugs off when Tanner did not reprimand the offending employee for this unwanted act; (3) Tanner restricted Gonzalez from coming onto the kill floor to see Soto; and (4) Tanner fired her. Defendant’s Brief at pg. 38-39. In Cherry v. Menard, Inc., 101 F.Supp.2d 1160 (N.D.Iowa 2000), this court explained the “adverse employment action” element as follows: [N]ot everything that makes an employee unhappy is an actionable adverse action. [T]he adverse action does not have to be a discharge, [but] the allegedly retaliatory conduct must nonetheless be “ ‘more disruptive than a mere inconvenience or an alteration of job responsibilities’ [or][c]hanges in duties or working conditions that cause no materially significant disadvantage.” In Kim, the Eighth Circuit Court of Appeals explained that what the court must look for is “the kind of serious employment consequences that adversely affected or undermined [the employee’s] position, even if [s]he was not discharged, demoted or suspended.” Kim, 123 F.3d at 1060. Furthermore, the court may examine the cumulative effect of the employer’s allegedly retaliatory actions, rather than determining whether any individual action upon which the claim relies was sufficiently adverse. Id. at 1185-86. (citations and quotations omitted). Clearly, the facts that Tanner treated Soto differently after finding out she had a boyfriend, and restricting Gonzalez from coming onto the kill floor do not qualify as ‘adverse employment actions.’ See Montandon v. Farmland Indus., 116 F.3d 355, 359 (8th Cir.1997) (reiterating that not everything that makes an employee unhappy amounts to an actionable adverse employment action). Tanner’s threats of termination when Soto went to Human Resources, where no adverse action or tangible alteration of her job re sponsibilities resulted from those threats, also fails to meet the threshold requirements of an actionable adverse employment action. See Buettner v. Arch Coal Sales Co., Inc., 216 F.3d 707, 715 (8th Cir.2000) (“Employment actions that do not result in changes in pay, benefits or responsibility are insufficient to sustain a retaliation" }, { "docid": "591118", "title": "", "text": "terminate her employment, and stated, “weT see who’s sitting in that seat on October 1st.’ ” Dkt. 45 ¶ 69. About a month later, on May 20, 2010, General Schwartz’s staff allegedly “Solicited the advice of the D.C. Human Resources Department’s General Counsel regarding General Schwartz’s administrative authority over the employees of the Government Operations Division.” Id. ¶ 70. General Schwarz'purportedly repeated his threat (“we’ll see who’s sitting in that seat on October 1st”) on or around September 13, 2010, which was shortly after the D.C. Attorney General issued his opinion. Id. ¶ 73. Finally, Clayton alleges that Neil Albert, the City Administrator and the official who notified her of her termination, is a personal friend of General Schwartz, and that Albert and Schwartz discussed Clayton’s “continued employment with Defendants.” Id. ¶ 77. “Construing the complaint liberally and giving [Clayton] the benefit of all inferences that can be derived from the facts alleged,” Browning v. Clinton, 292 F.3d 235, 240 (D.C.Cir.2002) (internal quotation marks omitted), the Complaint plausibly alleges that Defendants retaliated against Clayton for reporting the sexual harassment complaint and that this retaliation led to Clayton’s eventual reclassification and termination. 3. Clayton’s Title VII Sex Discrimi- . nation Claim Clayton also alleges that she was “terminated from employment because of her gender” and that she “received different treatment from similarly 'situated employees outside the protected class.” Dkt. 45 ¶¶ 128-29. According to the Complaint, “Ms. Clayton’s predecessor, Anthony De-vassey, a male, continued in his tenure as a Career Service employee,” while Clayton “was forced to be reclassified.” Id. ¶ 130. Additionally, Devassey “was permitted to dictate his own incentive awards to employees,” while “in the case of Ms. Clayton, the employee incentive awards were dictated to her.” Id. ¶ 131. The District argues that these allegations are insufficient to state a claim under Title VII. It observes that Devassey was himself terminated in 2008 (Dkt. 45.¶25) and that Devassey was not similarly situated to Clayton, in any event, because he served as Director of D.C. Government Operations before the August 2010 opinion from the D.C. Attorney General clarified the" }, { "docid": "6936068", "title": "", "text": "until on reply when Defendant argues that even if Plaintiff could establish that Defendant commenced the alleged actions against her after she engaged in protected activity, Plaintiff has failed to tender sufficient evidence from which a reasonable jury could conclude that such actions were materially adverse. Def.’s Reply at 9. By waiting until his reply to raise this argument, Defendant has deprived Plaintiff of an opportunity to render a full and fair response, and the Court could exercise its discretion to discount Defendant’s argument on this basis alone. See Baloch v. Norton, 517 F.Supp.2d 345, 348 (D.D.C.2007), aff'd sub nom. Baloch v. Kempthorne, 550 F.3d 1191 (D.C.Cir.2008) (“If the movant raises arguments for the first time in his reply to the non-movant’s opposition, the court [may] either ignore those arguments ... or provide the non-movant an opportunity to respond.”). Nevertheless, because Plaintiff bears the burden of establishing her prima facie case and did in fact address the question of materiality in her opposition memorandum, the Court shall address the issue here. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Where the nonmoving party “will bear the burden of proof at trial on a dispositive issue,” the non-moving party bears the burden of production at the summary judgment phase to “designate specific facts showing that there is a genuine issue for trial[.]”) (internal quotation marks omitted). The Supreme Court clarified the meaning of a “materially adverse” retaliatory action in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006). The Court explained that Title VII’s retaliation and discrimination provisions are not “coterminous,” id. at 66, 126 S.Ct. 2405, and that, unlike its prohibition against discrimination, Title VII’s prohibition against retaliatory action is “not limited to” “actions that affect the terms and conditions of employment,” id. at 63, 126 S.Ct. 2405. Rather, the anti-retaliation provision “extends beyond” “employment-related retaliatory acts and harm” to include any conduct that ‘“well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” Burlington Northern," }, { "docid": "591129", "title": "", "text": "1614.105(a). See Harris v. Gonzales, 488 F.3d 442, 444-45 (D.C.Cir.2007) (reversing grant of summary judgment to defendant where plaintiff raised an issue of fact as to notification under section 1615.105(a)(2)). In Harris, the Court of Appeals adopted an objective test for assessing the adequacy of notice under paragraph (a)(2). That test asks “(1) whether notification of the time requirements was provided, and (2) whether the notification was reasonably geared to inform the complainant of the time limits.” Harris, 488 F.3d at 445 (citation and internal quotation marks omitted). In a declaration attached to her brief, Clayton states that she was never notified about the 45-day time limit to contact an EEO counselor and that she “cannot recall ever seeing” posters advising of that limit “anywhere in the DCNG.” Dkt. 69-1 ¶¶ 3-5. Her testimony — which the DCNG has not yet had an opportunity to rebut — does not. conclusively establish that Clayton is entitled to bring suit without having complied with the 45-day requirement. It is possible that the DCNG will be able to present evidence showing that its notification procedures satisfied the Harris requirements. It has not done so yet, however, and Plaintiffs declaration — like the declaration in Harris — is sufficient to raise a factual issue as to the adequacy of the DCNG’s notification re garding the EEO.C time limits. See id, at 445. For this .reason, the Court cannot grant summary judgment on the ground of Plaintiffs alleged failure to exhaust administrative remedies. 3. Whether the DCNG and the District Are Joint Employers The DCNG finally argues that Clayton' was not an “employee” of the DCNG and, therefore, cannot bring suit against it under Title VII. See 42 U.S.C. § 2000e-16 (“All personnel actions affecting employees or applicants for employment ... in military departments [or] in executive agencies ... shall made be free from discrimination based on ,.. sex _”) (emphasis added); ef, 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful employment practice for an employer to discriminate ... because [an employee or applicant for employment] has opposed any practice made an unlawful employment" }, { "docid": "5641157", "title": "", "text": "a reasonable trier of fact could find objectively tangible harm.” Forkkio v. Powell, 306 F.3d 1127, 1131 (D.C.Cir.2002). “[N]ot everything that makes an employee unhappy,” however, “is an actionable adverse action.” Baird, 662 F.3d at 1250 (quoting Douglas v. Donovan, 559 F.3d 549, 552 (D.C.Cir.2009)). Courts have routinely recognized the difference between “purely subjective injuries” on the one hand and' “objectively tangible harm” on the other. See, e.g., Holcomb v. Powell, 433 F.3d 889, 902 (D.C.Cir.2006) (internal quotation marks omitted). Because adverse employment actions must be “significant” and entail “objectively tangible harm,” the Supreme Court has recognized that “in most cases [adverse employment actions] inflictf] direct economic harm.” Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 762, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) (emphasis added). As a result, “[c]ourts. applying Title VII have consistently focused on ‘ultimate employment decisions such as hiring, granting leave, discharging, promoting, and compensating ... [and not] interlocutory or mediate decisions having, no immediate effect upon employment conditions.’ ” Taylor v. FDIC, 132 F.3d 753, 764 (D.C.Cir.1997). 1. Disparate Treatment (Race and Gender Discrimination) The plaintiff alleges in Count I of the Complaint that the defendant discriminated against her because of her race and gender in violation of Title VII. In an attempt to adequately plead the elements of this claim, the plaintiff alleges that she suffered several adverse employment actions at the hands of the defendant. In particular, she alleges that she was: (1) “denied training that was mandatory for males”; (2) “exclu[ded] from participation in planning training courses and exclu[ded] from assisting with or teaching training courses”; (3) “denied equipment that was essential to the optimal functioning of her position [and] denied assistance that was necessary to properly train officers”; (4) “aceus[ed] of responsibility for low training numbers” and as a. result “transferred to a less prestigious position and to a shift that had fewer opportunities for career growth and career enhancement” and (5) faced “demeaning treatment and threat of demotion” from her superiors. Compl. ¶¶ 10, 13, 15, 16, 26, 33; Pl.’s Opp’n Mem. at 8. As discussed below, the Court finds" }, { "docid": "591113", "title": "", "text": "property interest in her erroneous classification to the Career Service and the District was compelled by law to reclassify her to the Management Supervisory Service once it acknowledged its error, her as-applied due process challenge fails as a matter of law. 2. Clayton’s Title VII Retaliation Claim In Count VI of her Complaint, Clayton alleges that she was the victim of adverse employment actions, including her eventual termination, based on her role in reporting a sexual hárassment claim made against General Schwartz in 2010. Title VII prohibits retaliation against employees who have “opposed” an unlawful employment practice or “made a charge, testified, assisted, or participated in any manner in an investigation, proceeding or hearing” under Title VII. 42 U.S.C. § 2000e-3(a). In turn, when an employee is subjected to harassment that is “sufficiently severe or pervasive to alter the conditions of the victim’s employment and [to] create an abusive working environment ... Title VII is violated.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993) (internal quotation marks omitted). Thus, if Clayton has plausibly al leged that she was retaliated against as a result of “opposing” or “partieipat[ing] in an investigation” of workplace sexual harassment, she has stated a retaliation claim under Title VII. Clayton’s allegations satisfy this standard. According to the Complaint, an administrative assistant to General Schwartz “made a sexual harassment complaint to Ms. Clayton against General Schwartz.” Dkt. 45 ¶ 14. The Complaint alleges that Clayton was then contacted by a master sergeant, who served as the DCNG federal Equal Employment Opportunity (“EEO”) officer. Id, ¶ 15. The master sergeant “asked Ms. Clayton ... whether ‘General Schwartz’[s] administrative assistant had informed Ms. Clayton that she had filed sexual harassment charges against [General Schwartz],”’ id. and he told her that he. General Schwartz and a number of others “ ‘had been huddled in the General’s office most of the day, trying to determine who the administrative assistant had informed of the filing since she refused to discuss the issue with the federal EEO officer,’ ” id. ¶ 16. According to the" } ]

[ { "docid": "10706751", "title": "", "text": "insider corporation is the subject of a separate bankruptcy case”) (citations omitted). . The only argument Appellants presented in their Initial Brief regarding Sections 727(a)(7) and 727(a)(2) was that the Bankruptcy Court erred because Harley Kane transferred property of the Partnership and not his own property. See Appellants Br., at 30. As discussed supra, this argument is contrary to the applicable law. See e.g., In re Hoefer, No. 09-AP-04009, 2010 WL 1658323, at *6 (Bankr.E.D.Tex. Apr. 23, 2010); In re Lobell, 390 B.R. 206, 218 (Bankr.M.D.La.2008). Additionally, Appellants waived all other arguments presented for the first time in their Reply regarding Sections 727(a)(7) and 727(a)(2). See Davis v. Coca-Cola Bottling Co. Consol., 516 F.3d 955, 973 (11th Cir.2008) (\"It is well settled in this circuit that an argument not included in the appellant’s opening brief is deemed abandoned. And presenting the argument in the appellant's reply does not somehow resurrect it.”) (internal citations omitted). . Section 101(31)(A)’s definition of \"insider” \"includes&emdash;if the debtor is an individual&emdash;... (ii)[a] partnership in which the debtor is a general partner....” 11 U.S.C. § 101(31)(A). Additionally, Harley Kane was an insider in the Partnership's Chapter 11 Proceeding. See 11 U.S.C. § 101(31)(C) (an insider \"includes&emdash;if the debtor is a partnership&emdash;(i) [a] general partner of the debtor.... ”). . In affirming the Bankruptcy Court’s determination that Harley Kane’s discharge is barred pursuant to Sections 727(a)(7) and 727(a)(2), this Court declines to address the Bankruptcy Court's ruling that his discharge could also be barred pursuant to Section 727(a)(6). See In re McKinney, No. 10-AP-06017, 2012 WL 1030445, at *4 (Bankr.S.D.Ga. Mar. 5, 2012) (“A finding against the debtor under any one subsection of § 727(a) is a sufficient ground for denial of the discharge.”) (quoting In re Protos, 322 Fed.Appx. at 932-33)." } ]

[ { "docid": "4591370", "title": "", "text": "has statutory insider status is one of first impression in this District but is an issue which other courts have addressed. Under Third Circuit precedent, the determination of an insider is “best described as a mixed question of law and fact.” In re Winstar Communications, Inc., 554 F.3d 382, 394 (3d Cir. 2009). The definition of “insider” under the Code is flexible and not amenable to precise formulation. An insider is any person or entity whose relationship with a debtor is sufficiently close that any transactions between them ought to be subjected to closer scrutiny than those occurring at arm’s length. In re Dan-Ver Enterprises, Inc., 86 B.R. 443, 449 (Bankr.W.D.Pa.1988). There are two types of insiders for the purposes of Section 548: statutory insiders pursuant to Sections 548(a) and 101(31) of the Code, and non-statutory insiders as defined in In re Winstar Communications, Inc., 554 F.3d at 394 . The description of an “insider” to a debtor corporation under Section 101(31) includes any of the following: (i) director; (ii) officer; (iii) person in control; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor. 11 U.S.C. § 101(31)(B). In In re Pittsburgh Cut Flower Company, Inc., 124 B.R. 451 (Bankr.W.D.Pa. 1991), the Western District of Pennsylvania held that in determining whether a transferee is an insider, the pertinent time is the date of their agreement. Id. at 460. In Pittsburgh, the debtor and defendant entered into a partnership agreement to construct warehouses. Id. at 454. Defendant, a general partner, owned forty percent of the partnership while the debtor, a limited partner, owned sixty percent. Id. at 454-455. Over time, defendant became a limited partner and then sold his interest in the partnership to the debtor. Id. at 455. Five months after the sale, debtor filed for bankruptcy and sought to avoid the sale asserting it was a fraudulent conveyance made to an insider. Id. at 456. The court in Pittsburgh concluded that the sale was not avoidable" }, { "docid": "23408166", "title": "", "text": "by Section 547(b)(4)(B). In circumstances where the debtor is a corporation, Section 101(31)(B) of the Bankruptcy Code defines “insider” as including a: (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor; Plainly, Liberty does not fit within any of these categories. The definition, however, uses the word “includes” and thus is not limiting in scope. See 11 U.S.C. § 102(3). Consequently, the six categories of corporate insider set forth at Section 101(31)(B) are not exhaustive. To determine if Liberty is an insider of the debtor, the court must look to the relationship between the debtor and Liberty. As the legislative history tells us, “an insider is one who has a sufficiently close relationship with the debtor that his conduct is made subject to closer scrutiny than those dealing at arms length with the debtor.” Torcise v. Cunigan (In re Torcise), 146 B.R. 303, 305 (Bkrtcy.S.D.Fla.1992) (quoting H.R.Rep. No. 595, 95th Cong., 1st Sess. 312 (1977); S.Rep. No. 989, 95th Cong., 2d Sess. 25 (1978), re printed in 1978 U.S.C.C.A.N. 1987, 5787). See, e.g., Browning Interests v. Allison (In re Holloway), 955 F.2d 1008, 1011 (5th Cir.1992); Committee of Unsecured Creditors for Pittsburgh Cut Flower Co. v. Hoopes (In re Pittsburgh Cut Flower Co.), 124 B.R. 451, 459-60 (Bankr.W.D.Pa.1991); Grant v. Podes (In re O’Connell), 119 B.R. 311, 316 (Bankr.M.D.Fla.1990). In Germain v. RFE Investment Partners IV, L.P. (In re Wescorp, Inc.), 148 B.R. 161, 164 (Bankr.D.Conn.1992), the court found that a bank was not an insider even where the bank had approval rights over compensation of the principals and, in the event of default, the ability to exercise stock warrants of the debtor and to elect jointly a majority of the board of directors. The court concluded that the bank and the debtor negotiated the terms of the loan agreement at arms-length, including those of potential control of the debtor." }, { "docid": "18772075", "title": "", "text": "precedent to the proposed agreements relating to a Delta investment in Pan Am II that Pan Am enter into arrangements that were satisfactory to Pan Am, Delta and the Creditors Committee providing for the availability of aircraft required for the operation of Pan Am II. Joint Ex. 9 at DPO16943-44. Proposed lease extensions relating to 19 leased aircraft were required to be signed by both Delta and the Creditors Committee. Tr. at 1119-20 (Mehm). None of those proposed extensions were signed by either Delta or the Creditors Committee. Tr. at 1119-20 (Mehm); Pl.Ex. 3054, 3055, 3056, 3057, 3058, 3059, 3060, 3061, 3062, 3063, 3064, 3065, 3067, 3071. Pan Am never agreed to the proposed lease extension relating to one B727 aircraft. Pl.Ex. 3071; Tr. at 1121-22 (Mehm). . See Section 1(F), supra, for terms of the loan and amounts drawn by Pan Am. . Pan Am's Chief Executive Officer Russell Ray did not authorize Pan Am to bring this action against Delta. Tr. at 2113 (Ray). . Section 101(31) provides in pertinent part: (31) \"insider” includes— (A) if the debtor is an individual— (i) relative of the debtor or of a general partner of the debtor; (ii) partnership in which the debtor is a general partner; (iii) general partner of the debtor; or (iv) corporation of which the debtor is a director, officer, or person in control; (B) if the debtor is a corporation— (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v)general partner of the debtor; or relative of a general partner, director, officer, or person in control of the debtor; (C) if the debtor is a partnership— (i) general partner in the debtor; (ii) relative of a general partner in, general partner of, or person in control of the debtor; (iii) partnership in which the debtor is a general partner; (iv) general partner of the debtor; or (v) person in control of the debtor; (D) if the debtor is a municipality, elected official of the debtor or relative of" }, { "docid": "14791257", "title": "", "text": "job offer from another business at the same or greater rate of compensation; (B) the services provided by the person are essential to the survival of the business; and (C) either-— (i) the amount of the transfer made to, or obligation incurred for the benefit of, the person is not greater than an amount equal to 10 times the amount of the mean transfer or obligation of a similar kind given to nonmanagement employees for any purpose during the calendar year in which the transfer is made or the obligation is incurred; or (ii)if no such similar transfers were made to, or obligations were incurred for the benefit of, such nonmanagement employees during such calendar year, the amount of the transfer or obligation is not greater than an amount equal to 25 percent of the amount of any similar transfer or obligation made to or incurred for the benefit of such insider for any purpose during the calendar year before the year in which such transfer is made or obligation is incurred; 11 U.S.C. § 503(c)(1). Section 101(31)(B) defines “insider” in the context of a corporation. The term includes a (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor. 11 U.S.C. § 101(31)(B). The Debtors contend that the KERP Employees are not “directors” or “officers” within the meaning of section 101(31). (Dempsey Decl. ¶ 14 n. 2; Etlin Decl. ¶ 13 n. 2.). Once an individual is considered to be a director or officer under section 101(31)(B), they are automatically considered insiders and the Court need not engage in further inquiry. See Smith v. Ruby (In re Public Access Technology.Com, Inc.), 307 B.R. 500, 505 (Bankr.E.D.Va.2004) (“A defendant’s status as a director or an officer is alone sufficient to establish that he is an insider.”). The term “director” is not defined in the Code. Although courts have not provided a" }, { "docid": "14515457", "title": "", "text": "158 B.R. at 560; In re Holywell Corp., 913 F.2d 873, 880-81 (11th Cir.1990); see also Matter of Lemco Gypsum, Inc., 911 F.2d 1553, 1557 (11th Cir.1990), reh’g denied, 930 F.2d 925 (11th Cir.1991) (Table). Despite his efforts, the Trustee has not established that Leighton was an insider of the Debtor. The Bankruptcy Code defines an insider of a partnership as a “(1) general partner in the debtor; (ii) relative of a general partner in, general partner of, or person in control of the debtor; (iii) partnership in which the debtor is a general partner; (iv) general partner of the debtor; or (v) person in control of the debtor.” 11 U.S.C. § 101(31)(C). The definition of insider does not include a limited partner who does not otherwise fit the definition of insider. Evidence presented at trial did not establish that Leighton, MeNab, or Lakeside had any partnership interests in Debtor; therefore Leigh-ton, McNab, and Lakeside were not insiders of Debtor. The Trustee correctly points out that the concept of “insider” includes affiliates of the debtor or insider of affiliates of the debtor. 11 U.S.C. § 101(31)(E); see also In re Kroh Bros. Dev. Co., 137 B.R. 332, 334-35 (W.D.Mo.1992). The Bankruptcy Code defines “affiliate” as an “entity that directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor” other than an entity that hold the securities in a fiduciary or agency capacity or solely to secure a debt. 11 U.S.C. § 101(2)(A). The Trustee argues that Mainstream was an insider of Debtor, McNab was an insider of Mainstream, and MeNab was an affiliate of Leighton. Thus, he asserts that Leighton was an affiliate of Debtor and an insider. McNab and Lakeside collectively held only 14% of the stock of Mainstream. The Code provides that an insider of a corporation includes the officers and directors of the corporation, those persons in control of the corporation, a partnership of which the corporation is general partner or a relative of the general partner, officers or directors, or persons in control" }, { "docid": "20300710", "title": "", "text": "at the time of such transfer was an insider; and (5) that enables such creditor to receive more than such creditor would receive if— (A) the case were a case under chapter 7 of this title; (B) the transfer had not been made; and (C) such creditor received payment of such debt to the extent provided by the provisions of this title. 11 U.S.C. § 547(b) (2008). The Bankruptcy Code defines insider, in pertinent part, as an “affiliate, or insider of an affiliate as if such affiliate were the debtor.” Id. § 101(31)(E). An affiliate, in turn, is an “entity that directly or indirectly owns, controls, or holds with power to vote, 20 percent or more of the outstanding voting securities of the debtor.” Id. § 101(2)(A). The Bankruptcy Code provides a non-exclusive definition of the term “insider.” Section 101(31)(B) provides that, if the debtor is a corporation, the term “insider” includes: (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer or person in control of the debtor. Id. § 101(31). Because the statutory language merely “includes” types of persons deemed to be insiders, courts have found these categories nonexhaustive. “[A]n insider may be any person or entity whose relationship with the debtor is sufficiently close so as to subject the relationship to careful scrutiny.” Butler v. David Shaw, Inc., 72 F.3d 437, 443 (4th Cir.1996). “Courts generally hold, in accordance with the legislative history of Section 101(31), that insider status is determined by a factual inquiry into the closeness of the relationship between the parties and whether the transaction between the transferee and debtor was conducted at ‘arm’s length.’ ” Three Flint Hill Ltd. P’ship v. Prudential Ins. Co. (In re Three Flint Hill Ltd. P’ship), 213 B.R. 292, 298 (D.Md.1997) (citing In re Holloway, 955 F.2d 1008, 1011 (5th Cir.1992)). The Fourth Circuit Court of Appeals has provided direction on this issue in Butler v." }, { "docid": "11715618", "title": "", "text": "required are not uniform in all eases. Where the claimant is an insider or a fiduciary, the trustee bears the burden of presenting material evidence of unfair conduct. Once the trustee meets his burden, the claimant then must prove the fairness of his transactions with the debtor or his claim will be equitably subordinated. If the claimant is not an insider or fiduciary, the trustee must prove more egregious conduct such as fraud, spoilation, or overreaching and prove it with particularity. In re N & D Properties, Inc., 799 F.2d 726, 731 (11th Cir.1986). Insider status alone, however, is insufficient to warrant subordination. In re Fabricators, Inc., 926 F.2d 1458, 1467 (5th Cir.1991). The question of whether a claimant is an insider is a question of fact which will only be reversed if clearly erroneous. Fabricators, Inc., 926 F.2d at 1466; Paolella & Sons, 161 B.R. at 118. Section 11 U.S.C. § 101(31) defines insider to include: (B) if the debtor is a corporation— (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the partner is a general partner. (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor. Id. The term “person” includes a corporation. 11 U.S.C. § 101(41). The Bankruptcy Court found that Heisley was an insider. This finding is clearly correct considering that Heisley was the chairman of the board and chief executive officer of N/S during the period of the inequitable conduct of which the appellants are complaining. Based on this finding the Bankruptcy Court went on to “assume, for purposes of our discussion, that we can collapse the Defendants and Heisley into a single entity which is, indeed, an insider of both entities.” Nutri/System, 169 B.R. at 866. Although the Court doubts the efficacy of collapsing the appellees into one entity, it will do so for purposes of this discussion because, notwithstanding the stricter scrutiny applied to insiders, the Bankruptcy Court’s finding that the appellants failed to prove inequitable conduct was" }, { "docid": "12091074", "title": "", "text": "insider of Winstar. Lucent contends that the lower courts erred in so holding. Lucent also argues that the proceeds of the Siemens loan were “earmarked” for Lucent such that no “interest of the debtor in property” was present. Finally, Lucent argues that the lower courts improperly denied its new value defense pursuant to 11 U.S.C. § 547(c)(4). Although at least one of our sister Courts of Appeals has held that the “determination of insider status is a question of fact ... subject to the clearly erroneous standard of review,” Fabricators, Inc. v. Technical Fabricators, Inc. (In re Fabricators, Inc.), 926 F.2d 1458, 1466 (5th Cir.1991), we believe that the issue is best characterized as a mixed question of law and fact. Cf. Anstine v. Carl Zeiss Meditec AG (In re U.S. Med., Inc.), 531 F.3d 1272, 1275 (10th Cir.2008) (characterizing insider status as a mixed question where “the facts are undisputed and the issue revolves around the legal conclusion drawn from the facts against the backdrop of a statute”). Thus, we will review the Bankruptcy Court’s findings for clear error but exercise “plenary review of the lower court’s interpretation and application of those facts to legal precepts.” Schlumberger Res. Mgmt. Servs., Inc. v. CellNet Data Sys., Inc. (In re CellNet Data Sys., Inc.), 327 F.3d 242, 244 (3d Cir.2003). Under the statute, “[t]he term ‘insider’ includes ... (B) if the debtor is a corporation — (i) director of the debtor; (ii) officer of the debtor; (in) person in control of the debtor; (iv) partnership in which the debt- or is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor.” 11 U.S.C. § 101(31)(B). Additionally, in light of Congress’s use of the term “includes” in § 101(31), courts have identified a category of creditors, sometimes called “non-statutory insiders,” who fall within the definition but outside of any of the enumerated categories. See In re U.S. Med., 531 F.3d at 1276. The Bankruptcy Court held that Lucent was an insider of Winstar under § 101(31)(B)(iii)’s “person" }, { "docid": "2410072", "title": "", "text": "the Debtor should be granted the right to maintain this Chapter 11 case, or assuming it is appropriate to maintain this adversary proceeding even after the dismissal, a proposition which is supported by In re Tankson, Bankr. N.D.Ill., 1992 WL 55684, 1992 Bankr. LEXIS 275; In re Morris, 950 F.2d 1531 (11th Cir.1992), the viability of the two claims asserted by the Debtor in this adversary proceeding should be addressed. The claim set forth in Count I as indicated earlier is based on § 547 of the Bankruptcy Code and alleges that the transfer of the stock ownership in Sunrise by the Debtor to Kolody was a voidable preferential transfer in that it was transferred to an insider, i.e., Kolody, within the required time provisions of § 547(b)(4)(B). The claim in Count II of the Complaint is based on the proposition that the transfer was fraudulent inasmuch as the Debtor did not receive fair and adequate consideration for the transfer, or in the alternative, that the transfer in effect rendered the Debtor insolvent. Considering the Motion to Dismiss the claim set forth in Count I first, the threshold question is, of course, whether Kolody was in fact an insider within the meaning of that term as defined by § 101(31) of the Bankruptcy Code. This is because the transfer clearly occurred outside the 90-day preference period, and no viable claim of voidable preference may be maintained when the transfer occurred outside of the 90-day preference period unless this Court determines that Kolody was, in fact, an insider. Section 101(31) of the Bankruptcy Code defines the term “insider” as follows: (A) if the debtor is an individual— (i) relative of the debtor or of a general partner of the debtor; (ii) partnership in which the debtor is a general partner; (iii) general partner of the debtor; or (iv) corporation of which the debtor is a director, officer or person in control; There is no doubt that Kolody does not fit into any of the categories set forth in this Section. It is contended, however, that the definition of the term “insider”" }, { "docid": "10219111", "title": "", "text": "appropriately deal with inequitable or fraudulent conduct which may be technically legal and not otherwise voidable. DeNatale & Abram, supra, 40 The Business Lawyer at 422. A party objecting to a claim has the initial burden of presenting a substantial factual basis to overcome the prima facie validity of a proof of claim. In re Multiponics, Inc., 622 F.2d 709, 714 (5th Cir.1980). Once the objecting party has met this initial burden the claimant must then demonstrate the fairness and good faith of the conduct. Pepper v. Litton, 308 U.S. 295, 306, 60 S.Ct. 238, 245, 84 L.Ed. 281 (1939). Where a claimant is an insider or an affiliate of the debtor, or where the creditor exercises control over or domination of the debtor, his dealings with the debtor are subject to strict scrutiny. Pep per v. Litton, 308 U.S. 295, 306-07, 60 S.Ct. 238, 245-46, 84 L.Ed. 281 (1939); In re T.E. Mercer, 16 B.R. 176 (Bankr.N.D.Tex.1981). The burden is on an insider claimant to show the inherent fairness and good faith of the challenged transaction. In re Teltronics Services, Inc., 29 B.R. 139 (Bankr.D.N.Y.1983). There is no precise definition of domination and control in this context L. King, 3 Collier On Bankruptcy, ¶ 510.-05[3][a], at 510-12 (15th ed. Supp.1984). The Code does define the term “insider”: “(A) if the debtor is an individual— “(i) relative of the debtor or of a general partner of the debtor; “(ii) partnership in which the debtor is a general partner; “(iii) general partner of the debtor; or “(iv) corporation of which the debtor is a director, officer, or person in control; “(B) if the debtor is a corporation— “(i) director of the debtor; “(ii) officer of the debtor; “(iii) person in control of the debtor; “(iv) partnership in which the debtor is a general partner; “(v) general partner of the debtor; or “(vi) relative of a general partner, director, officer, or person in control of the debtor; “(C) if the debtor is a partnership— “(i) general partner of the debtor; “(iv) general partner of the debtor; or “(v) person in control of" }, { "docid": "10219112", "title": "", "text": "challenged transaction. In re Teltronics Services, Inc., 29 B.R. 139 (Bankr.D.N.Y.1983). There is no precise definition of domination and control in this context L. King, 3 Collier On Bankruptcy, ¶ 510.-05[3][a], at 510-12 (15th ed. Supp.1984). The Code does define the term “insider”: “(A) if the debtor is an individual— “(i) relative of the debtor or of a general partner of the debtor; “(ii) partnership in which the debtor is a general partner; “(iii) general partner of the debtor; or “(iv) corporation of which the debtor is a director, officer, or person in control; “(B) if the debtor is a corporation— “(i) director of the debtor; “(ii) officer of the debtor; “(iii) person in control of the debtor; “(iv) partnership in which the debtor is a general partner; “(v) general partner of the debtor; or “(vi) relative of a general partner, director, officer, or person in control of the debtor; “(C) if the debtor is a partnership— “(i) general partner of the debtor; “(iv) general partner of the debtor; or “(v) person in control of the debtor’ “(D) if the debtor is a municipality, elected official of the debtor or relative of an elected official of the debtor; “(E) affiliate, or insider of an affiliate as if such affiliate were the debtor; and “(F) managing agent of the debtor.” 11 U.S.C. § 101(28) (1984). The Code also defines an affiliate as an entity that controls twenty per cent of the debtor’ stock, or is controlled by the debtor to the same extent. 11 U.S.C. § 101(2) (1984); L. King, 3 Collier On Bankruptcy, H 510.5[3], at 510-12-13 (15th ed. Supp.1984). The court must closely examine the claimant’s relationship to the debtor to determine whether the claimant has used an opportunity to adjust its position in such a way that other creditors are prejudiced. Id. at 510-13-14. However, the claimant’s status as an insider, affiliate or controlling entity will not automatically require subordination. Id. To establish that subordination is an appropriate remedy the following elements must be established: (i) the claimant must have engaged in some type of inequitable conduct; (ii)" }, { "docid": "16850378", "title": "", "text": "thorough evaluation of the substance of the challenged loan and the parties’ intent than the rule espoused by the Eleventh Circuit in N & D Properties. 2. Insider Status Notably, the sixth AutoStyle Plastics factor, namely “the identity of interest between the creditor and the stockholder” implicates the Trustee’s argument that Tencara must be considered a non-statutory insider of the Debtor. The term ‘insider’ includes ... (B) if the debtor is a corporation — (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor. 11 U.S.C. § 101(31)(B). Because Congress used the term “includes” in § 101(31), a number of courts have identified a category of creditors, called “non-statutory insiders,” who fall within the definition, but outside of any of the five categories specified. See Schubert v. Lucent Techs., Inc. (In re Winstar Commc’ns, Inc.), 554 F.3d 382, 395 (3d Cir.2009) (citing Anstine v. Carl Zeiss Meditec AG (In re U.S. Med., Inc.), 531 F.3d 1272, 1276 (10th Cir.2008)). The United States Court of Appeals for the Third Circuit held in Winstar that “it is not necessary that a non-statutory insider have actual control; rather, the question ‘is whether there is a close relationship [between debtor and creditor] and ... anything other than closeness to suggest that any transactions were not conducted at arm’s length.’ ” 554 F.3d at 396-97 (citing In re U.S. Med., 531 F.3d at 1277 and S.Rep. No. 95-989, at 25 (1978), as reprinted in 1978 U.S.C.C.A.N. 5787, 5810 (“An insider is one who has a sufficiently close relationship with the debtor that his conduct is made subject to closer scrutiny than those dealing at [arm’s] length with the debtor.”)). In In re Foothills Texas, Inc., 408 B.R. 573 (Bankr.D.Del.2009), the bankruptcy court elaborated on whether a person or entity should be considered a non-statutory insider. It stated: “The Third Circuit’s focus of inquiry is in accord" }, { "docid": "12091075", "title": "", "text": "Court’s findings for clear error but exercise “plenary review of the lower court’s interpretation and application of those facts to legal precepts.” Schlumberger Res. Mgmt. Servs., Inc. v. CellNet Data Sys., Inc. (In re CellNet Data Sys., Inc.), 327 F.3d 242, 244 (3d Cir.2003). Under the statute, “[t]he term ‘insider’ includes ... (B) if the debtor is a corporation — (i) director of the debtor; (ii) officer of the debtor; (in) person in control of the debtor; (iv) partnership in which the debt- or is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor.” 11 U.S.C. § 101(31)(B). Additionally, in light of Congress’s use of the term “includes” in § 101(31), courts have identified a category of creditors, sometimes called “non-statutory insiders,” who fall within the definition but outside of any of the enumerated categories. See In re U.S. Med., 531 F.3d at 1276. The Bankruptcy Court held that Lucent was an insider of Winstar under § 101(31)(B)(iii)’s “person in control” language and as a non-statutory insider. Lu-cent argues that the lower courts applied the incorrect legal standard under § 101(31) and, further, that the evidence was insufficient to support a finding of insider status. The principal issue presented is the legal standard for “insider.” Lucent asserts that, in order for a creditor to constitute an “insider” as either a “person in control” or a non-statutory insider, that creditor must exercise “actual managerial control over the debtor’s day-to-day operations.” Appellant’s Br. at 32-33. According to Lu-cent, the term “person in control” and the scope of the non-statutory insider category both “should be interpreted in light of the other statutorily enumerated ‘insiders’ ” such that “the evidence would have to demonstrate that Lucent exercised the type of authority over Winstar that an officer, director, or general partner exercises — actual managerial control over the debtor’s day-to-day operations.” Appellant’s Br. at 32. In support of that argument, Lucent cites to only one decision by an Article III court, Butler v. David Shaw, Inc., 72 F.3d 437," }, { "docid": "18532408", "title": "", "text": "litigation tactics; (9) whether a prophylactic purpose could be served by removing the trustee; (10) the position of the U.S. Trustee regarding the motion; and (11) the fairness of removal to the trustee under the circumstances. . Moreover, because our facts only implicate the \"catch-all” provision of § 101(14)(E), we do not need to \"throw out the baby with the bath water.\" In other words, we do not need to decide whether or not a per se rule should be applied to a lack of disinterestedness based on §§ 101(14)(A)-(D). In fact, the Third Circuit later circumscribed its holding in BH & P in a case where the professional was clearly a creditor of the debtor and thus not disinterested under the plain terms of § 101(14)(A). It stated: We similarly reject the argument that our decision in In re BH & P authorizes bankruptcy courts to take a \"flexible approach” in determining whether a professional who is not \"disinterested” under the statutory definition may nevertheless be employed pursuant to Section 327(a). In In re BH & P, we were required to interpret the phrase \"actual conflict of interest” in Section 327(c). We found this phrase to be ambiguous and thus held that a bankruptcy court should have discretion \"in determining whether an actual conflict exists 'in light of the particular facts of each case.’ ” In re BH & P, 949 F.2d at 1315 (citations omitted). In the current case, we must interpret and apply Section 327(a), not Section 327(c). and as we have explained, we find no ambiguity in the relevant language of Section 327(a). U.S. Trustee v. Price Waterhouse, 19 F.3d 138, 142 (3d Cir.1994). The court then reversed the order of employment. . Section 101(31)(B) provides that insiders of a corporate debtor include: (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor. 11 U.S.C. § 101(31)(B)." }, { "docid": "15953129", "title": "", "text": "in its decision, see South Beach, 341 B.R. at 857, it did so only as an example of a Code provision that (the district court said) “prevents insiders from using their privileged position to disadvantage non-insider creditors.” Id. At no point did the district court hold or even imply that South Beach’s plan — which was not filed until five months after the case had been remanded — complied with section 1129(a)(10). The citation of that section as support for a broad observation about bankruptcy policy was not an “integral elementf] of the analysis,” Wilder, 153 F.3d at 803, but was dicta. Because the district court never suggested, let alone held, that a plan can be confirmed in a chapter 11 case where the debtor’s only creditor is an insider holding an impaired claim, the district court’s decision is not the law of the case on that point and does not foreclose the U.S. trustee’s section 1129(a)(10) objection. ii. Insider South Beach failed to meet its burden of proving that Scattered is not its insider. On the contrary, the few facts adduced at the confirmation hearing tended to establish Scattered’s insider status. The plan therefore does not meet the requirements of section 1129(a)(10). The term “insider” is defined in section 101(31) of the Code. 11 U.S.C. § 101(31). Because South Beach is a corporation, the term “includes” a(i) director of the debtor, (ii) officer of the debtor, (iii) person in control of the debtor, (iv) partnership in which the debtor is a general partner, (v) general partner of the debtor, or (vi) relative of a general partner, director, officer, or person in control of the debtor. 11 U.S.C. § 101(31)(B)(i)-(vi). Most of these possibilities are easily ruled out here. Scattered, a corporation itself, is not a director or officer of South Beach, is not a partner of South Beach, and is not a partnership. Corporations also do not have “relatives.” Under section 101(41), however, a “person” includes a corporation, 11 U.S.C. § 101(41), and so a corporation can be a “person in control of the debtor” and an insider under" }, { "docid": "19119859", "title": "", "text": "appealed. II. DISCUSSION The question of insider status is regarded as a mixed question of law and fact. In re Krehl, 86 F.3d 737, 742 (7th Cir.1996). We review mixed questions of law and fact de novo. In re Ebbler Furniture and Appliances, Inc., 804 F.2d 87, 89 (7th Cir.1986). Pursuant to 11 U.S.C. § 547(b), a bankruptcy trustee is able to avoid certain transfers made by a debtor prior to filing for bankruptcy. Generally, all transfers within 90 days of the debtor’s bankruptcy filing are considered preferential and subject to avoidance. 11 U.S.C. § 547(b)(4)(A). When the creditor is an “insider” of the debtor, however, the Bankruptcy Code enlarges the time period for avoidance to one year before the bankruptcy filing. 11 U.S.C. § 547(b)(4)(B). The Bankruptcy Code defines an insider of a corporation as a: (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor. 11 U.S.C. § 101(31)(B). Courts regularly treat this definition as illustrative of types of insider relationships and not as an exhaustive list. In re Krehl, 86 F.3d at 741. The insider analysis is a case-by-case decision based on the totality of the circumstances, and bankruptcy courts have used a variety of factors in their determinations. One approach focuses on the similarity of the alleged insider’s position to the enumerated statutory categories, while another approach focuses on the alleged insider’s control of the debtor. If the alleged insider holds a position substantially similar to the position specified in the definition, a court will often find that individual to be an insider. But, based on the legislative history of the statute, our case law has also held that the term insider can also encompass anyone with a “sufficiently close relationship with the debtor that his conduct is made subject to closer scrutiny than those dealing at arm’s length with the debtor.” Id. at 741-42 (citing S.Rep." }, { "docid": "4390834", "title": "", "text": "debtor and an insider is to be rigorously scrutinized by the courts.”) (citations omitted); Eufaula, 266 B.R. 483, 489 (“If the claimant is an insider or a fiduciary, the party seeking equitable subordination need only show ‘unfair’ conduct.”) (citing Estes v. N & D Properties, Inc. (In re N & D Properties, Inc.), 799 F.2d 726, 731 (11th Cir.1986)). Closer scrutiny for insiders is warranted “ ‘because such parties usually have greater opportunities for such inequi table conduct, not because the relationship itself is somehow grounds for subordination.’ ” Fabricators, 926 F.2d at 1465 (quoting Wilson v. Huffman (In re Missionary Baptist Foundation of America), 818 F.2d 1135, 1144 n. 8 (5th Cir.1987)). “Insider” is defined in 11 U.S.C. § 101(31), which relevant portion provides: (B) if the debtor is a corporation, (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative or a general partner, director, officer, or person in control of the debtor. 11 U.S.C. § 101(31)(B). “Shareholder of the debtor” is not one of the enumerated categories of insiders as defined by the bankruptcy code; however, the list of insider relationships contained in 11 U.S.C. § 101(31) is not exhaustive. See In re Armstrong, 231 B.R. 746, 749 (Bankr.E.D.Ark.1999); In re Century Investment Fund VII Ltd. Partnership, 96 B.R. 884, 892 (Bankr.E.D.Wis.1989). A shareholder who exercises control over the debtor can be considered an insider. See Fabricators, 926 F.2d at 1465 (noting that control of the debtor is sufficient for insider status, even absent other formal relationships, such as shareholder status). The undisputed facts show that, at the time of the transaction, Tullis-Dickerson already held a significant percentage of the outstanding shares of the Debtor. See Exhibit 6 to Memorandum Brief. And a principal of Tullis-Dickerson was a member of the Debtor’s board of directors. See Debtor’s Disclosure Statement. These factors are sufficient to confer “insider” status on Tullis-Dickerson. However, insider status by itself is insufficient grounds for equitable subordination. Mid-Town" }, { "docid": "14791258", "title": "", "text": "503(c)(1). Section 101(31)(B) defines “insider” in the context of a corporation. The term includes a (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (vi) relative of a general partner, director, officer, or person in control of the debtor. 11 U.S.C. § 101(31)(B). The Debtors contend that the KERP Employees are not “directors” or “officers” within the meaning of section 101(31). (Dempsey Decl. ¶ 14 n. 2; Etlin Decl. ¶ 13 n. 2.). Once an individual is considered to be a director or officer under section 101(31)(B), they are automatically considered insiders and the Court need not engage in further inquiry. See Smith v. Ruby (In re Public Access Technology.Com, Inc.), 307 B.R. 500, 505 (Bankr.E.D.Va.2004) (“A defendant’s status as a director or an officer is alone sufficient to establish that he is an insider.”). The term “director” is not defined in the Code. Although courts have not provided a precise definition, it appears that with respect to section 101(31)(B)(i), “director” means an individual who sits on the board of directors of a corporation. See Rupp v. United Security Bank (In re Kunz), 489 F.3d 1072, 1077 (10th Cir.2007). In Kunz, the Tenth Circuit stated that “[w]hen the term ‘director’ is used in reference to a corporation ... the term plainly means a person who is a member of the governing board of the corporation and participates in corporate governance.” Id. (citing Webster’s Third New Internat’l Dictionary 641 (1993); Black’s Law Dictionary 472-73 (7th ed. 1999)). The term “officer” is likewise not defined by the Code. However, courts have looked to Black’s Law Dictionary as a source of authority. See Office of the U.S. Trustee v. Fieldstone Mortgage Co., No. 08-755, 2008 WL 4826291, at *3 n. 12 (D.Md. Nov.5, 2008); Public Access Techn., 307 B.R. at 506. According to Black’s, an “officer” is defined as a “person elected or appointed by the board of directors to manage the daily operations of a corporation, such" }, { "docid": "15953130", "title": "", "text": "On the contrary, the few facts adduced at the confirmation hearing tended to establish Scattered’s insider status. The plan therefore does not meet the requirements of section 1129(a)(10). The term “insider” is defined in section 101(31) of the Code. 11 U.S.C. § 101(31). Because South Beach is a corporation, the term “includes” a(i) director of the debtor, (ii) officer of the debtor, (iii) person in control of the debtor, (iv) partnership in which the debtor is a general partner, (v) general partner of the debtor, or (vi) relative of a general partner, director, officer, or person in control of the debtor. 11 U.S.C. § 101(31)(B)(i)-(vi). Most of these possibilities are easily ruled out here. Scattered, a corporation itself, is not a director or officer of South Beach, is not a partner of South Beach, and is not a partnership. Corporations also do not have “relatives.” Under section 101(41), however, a “person” includes a corporation, 11 U.S.C. § 101(41), and so a corporation can be a “person in control of the debtor” and an insider under section 101(31). The question here, then, is whether Scattered is “in control” of South Beach. “Control” under section 101(31)(B)(iii) “has no fixed definition” and “is often defined by example and by an examination of the facts.” UVAS Farming Corp. v. Laviana Inves., N.V. (In re UVAS Farming Corp.), 89 B.R. 889, 892 (Bankr.D.N.M.1988). Courts have focused on “operating control,” Badger Freight-ways, Inc. v. Continental III. Nat’l Bank & Trust Co. of III. (In re Badger Freight-ways, Inc.), 106 B.R. 971, 982 (Bankr. N.D.Ill.1989), rather than “financial influence,” Johnson v. NBD Park Ridge Bank (In re Octagon Roofing), 124 B.R. 522, 530 (Bankr.N.D.Ill.1991). To be an insider of the debtor, a person need not have “legal or absolute” control of the debtor, K & R Mining, Inc. v. Kejfler Constr. Co. (In re K & R Mining, Inc.), 103 B.R. 136, 139 (Bankr.N.D.Ohio 1988), but “must exercise sufficient authority” to “dictate corporate policy and the disposition of corporate assets,” Badger Freightways, 106 B.R. at 982 (internal quotation omitted). “Actual management of a debtor is control.” CPY" }, { "docid": "18317106", "title": "", "text": "rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If the adverse party does not so respond, summary judgment, if appropriate, shall be entered against the adverse party. Fed.R.Civ.P. 56(e). (Emphasis supplied). The First Circuit has interpreted this provision to mean that while the absence of a genuine dispute as to a material fact is a necessary prerequisite to a finding of summary judgment in favor of the movant, the lack of such a dispute, without more, is not necessarily enough to require such a finding. See Desmond v. Varrasso (In re Varrasso), 37 F.3d 760, 764 (1st Cir.1994) (characterizing the absence of a material factual dispute as a “condition necessary,” but not a “condition sufficient,” to summary judgment). Accordingly, the burden is on the moving party to show that it is entitled to judgment as a matter of law. Id. The court must view all facts and draw all reasonable inferences in favor of the nonmoving party. Id. at 763. But here, the nonmoving party has failed to attach affidavits, depositions, answers to interrogatories, or any form of evidence whatsoever to her response to the motion for summary judgment. The Trustee’s opposition effectively rests on “mere allegations or denials of the adverse party’s pleading” and has failed to “set forth specific facts showing that there is a genuine issue for trial.” See, supra, Fed.R.Civ.P. 56(e). Rule 56(e), then, requires that this Court grant summary judgment in favor of SCB, but only “if appropriate.” B. “Insider” Status The Bankruptcy Code defines an “insider” to include: If the debtor is a corporation&emdash; (i) director of the debtor; (ii) officer of the debtor; (iii) person in control of the debtor; (iv) partnership in which the debtor is a general partner; (v) general partner of the debtor; or (iv) relative of a general partner, director, officer, or person in control of the debtor ... 11 U.S.C. § 101(31)(B). An “insider” also includes" } ]

[ { "docid": "2446965", "title": "", "text": "Therefore, it is clear that once a Debt- or or his family no longer actually reside in the premises as provided in CCP § 690.-31(a)(1), they can no longer claim that exemption. This is consistent with the purpose of the dwelling house exemption which is to protect the Debtor or his family from eviction from the family residence. Once they cease to reside in the residence, this protection becomes unnecessary. The Debtor cites no law to support his broad assertion that there can be no abandonment of a dwelling house exemption absent a showing of intent to abandon and that occupancy may be constructive as well as actual so long as there is a positive intention to occupy the premises at some time in the future. There was no testimony at the hearings to the effect that the Debtor’s job in Los Angeles is merely temporary or that the Debtor and/or his spouse have more than a generalized intent to move back to the residence at some indefinite future time. The Debtor is correct in characterizing this exemption as a “water faucet” whose flow depends upon actual residency in the home. The Debtor at the vacation of the premises has.lost his exemption. The Trustee, as a judicial lien creditor, can then proceed to enforce his lien. The Debtor is fully entitled to choose his exemption according to the laws of the State of California, but such exemption is only co-extensive with that body of law. The property, therefore, is exempted from the estate only to the extent it would be exempt against any judgment lien creditor. The Trustee can force a sale if a Debtor’s equity exceeds the authorized exemption amount, a voluntary sale by the Debtor under § 690.31 would be subject to the Trustee’s lien, and once the Debtor ceases to qualify for the exemption, the Trustee can enforce the lien rights of 11 U.S.C. § 544(a)(1) through a forced sale. There is nothing in the Bankruptcy Code to indicate that the Trustee’s rights as a judicial lien creditor are confined to that point in time when the" } ]

[ { "docid": "1128778", "title": "", "text": "has obtained an execution against the debtor which is returned unsatisfied, or of a hypothetical bona fide purchaser of real property from the debtor, which pass to the trustee in section 544(a); not just any type of judicial lien creditor, or specially favored creditor.” Id. ¶ 544.02 at 544-10. Whether under the former Act or the new Code, it is clear the extent of the trustee’s rights and powers are to be measured by state law. The state law with respect to property homesteaded under the California Civil Code is clear. The trustee in bankruptcy stands junior to a prior declared and recorded homestead. The law with respect to property affected by section 690.31 of the Code of Civil Procedure is less settled. However, from the legislative history, a plain reading of the section together with section 674(a), and recent California case law, the purpose is clear. That purpose is to protect every homeowner’s dwelling to the same extent as the homestead provisions without regard to the formalities of filing and recordation required by the homestead provisions. The section is intended to provide the same exemption and protection against the same creditors and lienholders as was given to those who homesteaded their property. Secured debts which are excepted from the homestead protection are also excepted from exemption under section 690.31. The procedure by which this new exemption is asserted, however, does not require filing or any prior act by the debtor. Section 690.31 places the burden on the judgment creditor seeking to enforce a judgment against a dwelling house to petition the court for issuance of a writ of execution. The petition must state that the dwelling is not exempt from execution either within the meaning of section 690.31 or within the meaning of the homestead provisions, that a search has been made and does not reveal a declared homestead and that the value of the dwelling over and above all liens and encumbrances exceeds the amount of allowable exemption. If the creditor has made the necessary allegations of non-exemption the debtor has the burden of establishing the exempt status." }, { "docid": "4752358", "title": "", "text": "is employed primarily to protect general creditors of the bankrupt against secret liens. To this end the trustee is given all the rights which a creditor with a lien by legal or equitable proceedings would enjoy. The court also noted that section 70c “arms the trustee” with these rights and powers “as to all property of the bankrupt on the date of bankruptcy...” The date of bankruptcy is critical under the Code, as it was under the former Act. That date (sometimes called the date of cleavage) determines property of the estate and claims that may be asserted against the estate. See, e.g., 11 U.S.C. §§ 541(a)(1) and 502(b)(1). Armed with the rights and powers of a judicial lien holder as of the commencement of the case, the trustee is enabled to free property of the estate of certain liens. It is not necessary for purposes of the strong arm powers that they exist at any time after commencement of the case, although the trustee necessarily will assert them at a later date. Accordingly, the trustee has cited no cases under the Act in which the concept of a continuing lien has been recognized, and I am aware of none. The strong arm clause was not restricted to avoiding secret liens under the Act. It also was used to restrict the debtor’s right to an exemption in those states, such as California, where a judgment lien is enforceable notwithstanding a subsequently recorded homestead. Sampsell v. Straub, supra. Sampsell v. Straub held that because the California judgment lien overrides “a tardily recorded homestead exemption” and because “at the date of bankruptcy” the trustee had the powers of a judgment lien holder, the bankrupt’s exemption could not be honored if the “declaration of homestead had not been recorded as required to become effective under California law until after bankruptcy adjudication.” Thus, as to the trustee in bankruptcy, it was immaterial that the homestead be recorded at all; if it were not of record on the date of bankruptcy, the property was not exempt in bankruptcy. Sampsell v. Straub does not, therefore, supply" }, { "docid": "4752371", "title": "", "text": "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 frozen exemption to rise and spill over into the hands of the waiting trustee. .The primary purpose of § 674 was to provide creditors with automatic access to surplus equity (over the homestead) in contradistinction to Calif.Civ.Code, § 1260, which does not allow such access. The unlikely availability of the entire homestead through abandonment or waiver would hardly warrant legislative concern since the most logical event which occurs over the ten year life of the lien v/ould be equity build-up. KATZ, Bankruptcy Judge (dissenting): As evidenced by the majority and concurring opinions, no two issues addressed in this case have received unanimous approval by the Panel. The reason for this is that the inter-relationship between California’s peculiar dwelling-house exemption and the operation of several sections of the Code is hard to define. The ability to differentiate between operation of law and achievement of desired results is key to reaching a proper decision in this case. While I agree with the concurring opinion that § 522(f) is ineffective as against a lien created under California Code" }, { "docid": "4752372", "title": "", "text": "frozen exemption to rise and spill over into the hands of the waiting trustee. .The primary purpose of § 674 was to provide creditors with automatic access to surplus equity (over the homestead) in contradistinction to Calif.Civ.Code, § 1260, which does not allow such access. The unlikely availability of the entire homestead through abandonment or waiver would hardly warrant legislative concern since the most logical event which occurs over the ten year life of the lien v/ould be equity build-up. KATZ, Bankruptcy Judge (dissenting): As evidenced by the majority and concurring opinions, no two issues addressed in this case have received unanimous approval by the Panel. The reason for this is that the inter-relationship between California’s peculiar dwelling-house exemption and the operation of several sections of the Code is hard to define. The ability to differentiate between operation of law and achievement of desired results is key to reaching a proper decision in this case. While I agree with the concurring opinion that § 522(f) is ineffective as against a lien created under California Code of Civil Procedure § 674(c), I part sides with the majority on the issue of whether or not the trustee receives a lien, which could eventually reach some if not all of the debtor’s equity in his dwelling house after the bankruptcy is filed. In my opinion the practical effect of the majority opinion is to elevate the California automatic homestead to a position far superior than was ever intended by the California Legislature. While I further agree that the fresh start of the debtor is particularly important to preserve, I believe the Code and the confines of due process limit our ability to grant exemptions beyond that which is embraced by the exemption chosen by the debtor. The basis for my dissent is an acute understanding of the nature and purposes of both the limited nature of the California dwelling-house exemption and the operation of the Bankruptcy Code. This understanding for the most part is brought out by a historical and logical analysis of the provisions in question. California Constitution, Article XX, Section 1.5" }, { "docid": "4752375", "title": "", "text": "Title 5 (commencing with Section 1237 .... ” [Emphasis added.] The new dwelling-house exemption was automatic in that no formal declaration of homestead needs to be recorded to gain the protection of the homestead. San Diego White Truck Company v. Swift, 96 Cal. App.3d 88, 92, 157 Cal.Rptr. 745 (1979). The legislative purpose behind the dwelling-house exemption was to ensure that a homestead exemption was not a mere formality available only to the knowledgeable, but to make sure that all who are entitled to it had an opportunity to secure the exemption. National Collection Agency v. Fabila, 93 Cal.App.3d Supp. 1, 155 Cal.Rptr. 356 (1979). The net effect of the dwelling-house exemption is that every dwelling house in California in which the debtor or the debt- or’s family actually resides is exempt from execution by any creditor unless that creditor would have been entitled to execute his judgment against the property even if it had been properly homesteaded at the time the judgment became a lien. See In re Sanford, 8 B.R. 761 (D.C.N.D.Cal.1981). This application, however, is tempered by the major difference between the two homestead laws in that a judgment lien will attach to a dwelling exempt under Code of Civil Procedure § 690.31, but will not attach to a dwelling which has been formally homesteaded. Code of Civil Procedure § 674(c); Krause v. Superior Court, 78 Cal. App.3d 499, 144 Cal.Rptr. 194 (1978); Engelman v. Gordon, 82 Cal.App.3d 174, 178, 146 Cal.Rptr. 835 (1978). The major issue herein is where do the trustee and creditors stand in relationship to a dwelling-house exemption when bankruptcy law is superimposed on the operation of the exemption. The law has long been well settled that the trustee and creditors in bankruptcy stand junior to a property recorded homestead. The law with respect to the automatic dwelling-house exemption is in need of clarification. In the recent case of In re Martin, (9th Cir. BAP 1982), this Panel held that 11 U.S.C. § 544 cannot be invoked by the trustee to defeat the debtor’s dwelling-house exemption. Unlike the adverse result under the Act," }, { "docid": "4752367", "title": "", "text": "§ 544, it would be voidable by the trustee and could be automatically preserved for the benefit of the estate, 11 U.S.C. § 551. It should be noted that the trustee does not seek to invoke his hypothetical status to test the validity of or set aside a pre-bank-ruptcy transfer to another creditor. He seeks instead to affect the debtor’s homestead property by claiming hypothetical status under § 544, with an inchoate lien which would lie dormant until the debtor’s post-bankruptcy circumstances would cause it to come to life. Use of the rights and powers given the trustee by § 544 for purposes other than avoiding transfers to creditors has been rare if not anomalous. 4B Collier on Bankruptcy ¶ 70.54 at 642 et seq. (14th ed. 1978). The dissent cites In re Martin, No. 80-1054 (BAP 9th Cir. 1982), and In re Sanford, 8 B.R. 761, 7 B.C.D. 729 (N.D.Cal.1981) as supporting the vesting of the § 674 lien in the trustee by virtue of 11 U.S.C. § 544. Those cases held the trustee 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" }, { "docid": "4752380", "title": "", "text": "to a creditor holding a judicial lien obtained in an action on a simple contract, whether or not such a creditor exists. When viewing the powers of the trustee under § 544 along with prior case law discussions and other provisions of the Code, a clear pattern emerges. The § 544 powers given to the trustee are a form of bankruptcy trade-off. In exchange for having their debts discharged, the unsecured creditors are given certain rights, albeit artificial rights, which have the effect of bringing into the estate all property which could have been available to them on the day bankruptcy was filed. The debtor, on the other hand, is given a discharge of his debts and receives a fresh start through the election of exemptions under § 522. Given the purposes of the trustee’s rights under § 544(a) and the trade-offs inherent in the bankruptcy laws, it makes good sense to apply these considerations in determining a value for the trustee’s lien. Consistent with these considerations and purposes I would hold that the value of the lien obtained under § 544(a) is the lesser of the total of all unsecured claims or the amount of equity in the property upon which the § 544(a) lien could attach on the date the petition is filed. By limiting the value of the lien to the value of property available on the date the petition was filed, the rights of creditors to secure equality in distribution and the legislative priority of preserving to the debtor a fresh start are fully balanced. Under a normal absolute exemption statute a lien valuation would not be necessary. The peculiar limited nature of the California dwelling-house exemption, however, requires that the lien of the trustee be valued currently such that it can be paid in the future when the exemption no longer prevents execution on the property. Having reached this point the question arises as to the length of time the trustee should be able to exercise his rights in the equity preserved for the estate. There is nothing in the Bankruptcy Code to indicate that" }, { "docid": "1128777", "title": "", "text": "under the present Code and this court’s reading of the provisions of the California Code of Civil Procedure. The Bankruptcy Code of 1978 does away with the concept of vesting title to the debtor’s property in the trustee. It creates and defines an estate and sets forth the powers and rights of the trustee in that estate (11 U.S.C. §§ 541, 544). The powers conferred “are those which the state law would allow to a supposed or hypothetical creditor of the debtor who, as of the commencement of the case, had completed the legal (or equitable) processes for perfection of a lien upon all the property available for the satisfaction of his claim against the debtor.” 4 Collier On Bankruptcy ¶ 544.02 at 544-5 to 544-6 (15th ed. 1980) (fns. omitted). The trustee’s status as a lien creditor is defined by section 544 as giving him the rights and powers of “a creditor of the debtor who upon a simple contract could have obtained a judicial lien on all property of the debtor, or who has obtained an execution against the debtor which is returned unsatisfied, or of a hypothetical bona fide purchaser of real property from the debtor, which pass to the trustee in section 544(a); not just any type of judicial lien creditor, or specially favored creditor.” Id. ¶ 544.02 at 544-10. Whether under the former Act or the new Code, it is clear the extent of the trustee’s rights and powers are to be measured by state law. The state law with respect to property homesteaded under the California Civil Code is clear. The trustee in bankruptcy stands junior to a prior declared and recorded homestead. The law with respect to property affected by section 690.31 of the Code of Civil Procedure is less settled. However, from the legislative history, a plain reading of the section together with section 674(a), and recent California case law, the purpose is clear. That purpose is to protect every homeowner’s dwelling to the same extent as the homestead provisions without regard to the formalities of filing and recordation required by the" }, { "docid": "1128773", "title": "", "text": "Section 1237) of Part 4 of Division 2 of the Civil Code. As a result, “every dwelling house in the State of California in which the debtor or the debtor’s family actually resides is exempt from execution by any creditor unless that creditor would have been entitled to execute his judgment against the property even if it had been properly homesteaded at the time the judgment became a lien.” 3 H. Miller & M. Starr, Current Law of California Real Estate § 16:49, at 85 (rev. 1977). The purpose of the new section was to provide for the exemption from execution of every dwelling “in which [the] debtor or family of [the] debtor actually resides to the same extent and, in the same amount as debtor or spouse of debtor could select as homestead.” Legislative Counsel’s Digest, 1974 Cal.Stats. Ch. 1251 at 206. Despite the Legislature’s specific qualification that the exemption is to the same extent and in the same amount as allowed by the homestead provisions, the trustee urges that in bankruptcy proceedings the section 690.31 exemption affords different and less protection than homesteading. Specifically, she claims that it protects only possession and not title. In support of her position the trustee relies solely on In re Campbell, 5 Bankr.Ct.Dec. 6 (S.D.Cal.Bankr.Ct.1978). Campbell distinguished the homestead provisions from the residential execution exemption. In doing so, it characterized the nature of the trustee’s rights and powers under section 70(c) of the Bankruptcy Act and construed section 690.31 in light of another section of the California Code of Civil Procedure, Cal.Civ.Proc.Code § 674(c). Under section 70(a) of the Bankruptcy Act the trustee was “vested by operation of law with the title of the bankrupt.” Upon qualification of the trustee, with certain exceptions, the trustee was deemed to have taken “absolute title” including the right to possession. 4A Collier On Bankruptcy ¶ 70.04 at 50 (14th ed. 1978). However, the trustee stood not merely in the shoes of the bankrupt but, as a result of the “strong-arm clause” of section 70(c), was given certain rights and powers with respect to the bankrupt’s" }, { "docid": "2446963", "title": "", "text": "the Debtor’s spouse would have no effect on the claimed exemption. Under 11 U.S.C. § 541(a), an estate is created at the time of the filing of the Debtor’s petition. Such an estate is comprised of essentially all of Debtor’s legal or equitable interest in property at the commencement of the case. Once all the Debt- or’s interest in such property passes to the estate, the Debtor is then entitled to exempt certain property from the estate under 11 U.S.C. § 522. The effect of the exemption created under CCP § 690.31 is to prevent a Debtor and/or his family from being evicted from their residence by creditors executing on a judgment. Its plain language exempts a Debtor’s residence from execution, it does not, however, do away with judgment liens altogether. Cal.Code Civ.Proc. § 674(c) provides as follows: With respect to real property containing a dwelling house judicially determined to be exempt from levy of execution pursuant to the provisions in Section 690.31, as distinguished from property subject to a declared homestead created pursuant to Title 5 (commencing with Section 1237) of Part 4 of Division 2 of the Civil Code, a judgment lien created pursuant to subdivision (a) of this section shall attach to such real property notwithstanding the exemption provided for by Section 690.31. 11 U.S.C. § 541 does away with the concept of title to the Debtor’s property vesting in the Trustee. See In re Sanford, 8 B.R. 761, 764 (N.D.Cal.1981); 4 Collier on Bankruptcy, ¶ 541.02[2] (15th Ed. 1980). Therefore, to the extent that the Campbell, supra, and Knox, supra, decisions were based upon the Trustee’s title concept under § 70(a) of the former Bankruptcy Act, they no longer apply. Nevertheless, the Trustee as a hypothetical lien creditor under 11 U.S.C. § 544(a)(1) has a judicial lien on the subject property as of the date the petition was filed. Unlike the homestead statutes, there is no statutory scheme outlining how a dwelling house exemption is abandoned. The plain language of the exemption statute, however, requires actual occupation of the residence by the Debtor and/or his family." }, { "docid": "4752383", "title": "", "text": "liens and encumbrances thereon, exceeds the amount of the allowable exemption. Code of Civil Procedure § 690.31(c). Even though a judicial lien attaches to the property under Code of Civil Procedure § 674(c), it is clear that this lien is junior to the exemption amount as long as the debtor does not voluntarily sell the dwelling and reinvests the proceeds from any execution sale within six months into another dwelling in which the debtor or his family actually resides. See Code of Civil Procedure § 690.31(j), (k); Ortale v. Mulhern, 58 Cal.App.3d 861, 864, 130 Cal.Rptr. 277 (1976). Therefore, if there is excess equity above liens and the homestead amount, or the debtors sell the dwelling or voluntarily move out, the lien would need to be paid to the extent the proceeds would no longer be exempt. See CCP § 690.31(j) The concurring opinion claims that there is an inherent contradiction in allowing discharged creditors, by virtue of invoking § 544, to have access to the debtor’s post bankruptcy accruals in equity and future earnings. This proposition ignores the basis upon which the value of the trustee’s lien would be fixed. His rights would be set in an amount certain on the date of the filing of the petition. Thereafter, the creditors would only be entitled to the funds upon which the lien attached. Clearly, any post-bankruptcy accruals in equity or future earnings of the debtor would only inure to the benefit of the debtor and his fresh start. The majority claims that the result of imparting a lien to the trustee would bring about a result which is contrary to the fundamental fresh-start policy of the Bankruptcy Code. In rendering my opinion, I am mindful that it would open the door to the situation where a debtor moves from the dwelling house 10 years after bankruptcy, but finds the equity in his house suddenly levied upon by the trustee in bankruptcy. Surely a debtor’s fresh start is not well fostered by this possibility. Yet on the other hand the result is consistent with both the purposes of the Bankruptcy" }, { "docid": "4752382", "title": "", "text": "the trustee’s rights as a judicial lien creditor are confined to the point in time when the bankruptcy case is commenced. That is merely the time the trustee’s rights are created. In re Bouchard, 11 B.R. 869 (Bkrtcy.S.D.Cal.1981). The trustee herein obtains a lien which is measured by the rights that a judicial lien creditor would have under the laws of California. In re Sanford, supra. Under California law a judicial lien exists a minimum of 10 years unless extended through supplemental proceedings. California Code of Civil Procedure §§ 674(a), 685. Therefore, I would hold that as long as the trustee remains in the case his lien could, be effective for more than 10 years. Having discussed the trustee’s lien, its value, and effective life, we must now discern what effect California law would have on the trustee’s lien. Under California law, a lien creditor can execute against the dwelling house of the debtor after application has been made and the court finds that the current value of the dwelling house, over and above all liens and encumbrances thereon, exceeds the amount of the allowable exemption. Code of Civil Procedure § 690.31(c). Even though a judicial lien attaches to the property under Code of Civil Procedure § 674(c), it is clear that this lien is junior to the exemption amount as long as the debtor does not voluntarily sell the dwelling and reinvests the proceeds from any execution sale within six months into another dwelling in which the debtor or his family actually resides. See Code of Civil Procedure § 690.31(j), (k); Ortale v. Mulhern, 58 Cal.App.3d 861, 864, 130 Cal.Rptr. 277 (1976). Therefore, if there is excess equity above liens and the homestead amount, or the debtors sell the dwelling or voluntarily move out, the lien would need to be paid to the extent the proceeds would no longer be exempt. See CCP § 690.31(j) The concurring opinion claims that there is an inherent contradiction in allowing discharged creditors, by virtue of invoking § 544, to have access to the debtor’s post bankruptcy accruals in equity and future earnings." }, { "docid": "4752377", "title": "", "text": "the dwelling-house exemption prevents the trustee from achieving outright ownership of the dwelling on the date of the bankruptcy is filed. Compare In re Martin, supra and In re Campbell, 5 BCD 6 (S.D.Cal.1978). Notwithstanding this holding, I believe the trustee is vested with certain rights which preserve equity in the dwelling for the estate to be realized at a point in time when the equity in the dwelling is no longer protected. This result is reached through the interplay between 11 U.S.C. § 544 and the limited nature of the California dwelling-house exemption. In addition to the rights conferred on the trustee in §§ 541 and 363, the trustee also derives the right to proceed against property under § 544 (11 U.S.C. § 544). Section 544(a)(1) gives the trustee the rights and powers of a creditor who obtains a judicial lien on all property on which a creditor on a simple contract could have obtained a lien. See also In re Sanford, supra. Similar to the dwelling-house exemption, the nature and purpose of the trustee’s § 544 powers are better defined by a historical review of the section’s derivation. Section 544 is the descendant of over eighty years of case law interpretation and statutory evolution. In 1910 Section 47, cl.2(a) [11 U.S.C. § 75(a)(2)] was amended such as to vest in the trustee for the interest of all creditors the potential rights of creditors possessing or holding liens upon the property coming into his custody by legal or equitable proceedings. Pacific State Bank v. Coats, 205 F. 618 (9th Cir. 1913). The major purpose of this amendment was to allow the trustee to cut off secret and undisclosed claims against the property. By cutting off these secret interests the bankruptcy laws brought about uniformity in administration and equalized the distribution of assets to all unsecured creditors. In re Floyd-Scott Co., 224 F. 987 (D.Mass.1915); In re Horton, 31 F.2d 795 (W.D.La.1928). By placing the trustee in the status of a lien creditor, the 1910 amendment sought to vest the trustee with the rights of those creditors who had yet" }, { "docid": "4752376", "title": "", "text": "application, however, is tempered by the major difference between the two homestead laws in that a judgment lien will attach to a dwelling exempt under Code of Civil Procedure § 690.31, but will not attach to a dwelling which has been formally homesteaded. Code of Civil Procedure § 674(c); Krause v. Superior Court, 78 Cal. App.3d 499, 144 Cal.Rptr. 194 (1978); Engelman v. Gordon, 82 Cal.App.3d 174, 178, 146 Cal.Rptr. 835 (1978). The major issue herein is where do the trustee and creditors stand in relationship to a dwelling-house exemption when bankruptcy law is superimposed on the operation of the exemption. The law has long been well settled that the trustee and creditors in bankruptcy stand junior to a property recorded homestead. The law with respect to the automatic dwelling-house exemption is in need of clarification. In the recent case of In re Martin, (9th Cir. BAP 1982), this Panel held that 11 U.S.C. § 544 cannot be invoked by the trustee to defeat the debtor’s dwelling-house exemption. Unlike the adverse result under the Act, the dwelling-house exemption prevents the trustee from achieving outright ownership of the dwelling on the date of the bankruptcy is filed. Compare In re Martin, supra and In re Campbell, 5 BCD 6 (S.D.Cal.1978). Notwithstanding this holding, I believe the trustee is vested with certain rights which preserve equity in the dwelling for the estate to be realized at a point in time when the equity in the dwelling is no longer protected. This result is reached through the interplay between 11 U.S.C. § 544 and the limited nature of the California dwelling-house exemption. In addition to the rights conferred on the trustee in §§ 541 and 363, the trustee also derives the right to proceed against property under § 544 (11 U.S.C. § 544). Section 544(a)(1) gives the trustee the rights and powers of a creditor who obtains a judicial lien on all property on which a creditor on a simple contract could have obtained a lien. See also In re Sanford, supra. Similar to the dwelling-house exemption, the nature and purpose of the" }, { "docid": "4752384", "title": "", "text": "This proposition ignores the basis upon which the value of the trustee’s lien would be fixed. His rights would be set in an amount certain on the date of the filing of the petition. Thereafter, the creditors would only be entitled to the funds upon which the lien attached. Clearly, any post-bankruptcy accruals in equity or future earnings of the debtor would only inure to the benefit of the debtor and his fresh start. The majority claims that the result of imparting a lien to the trustee would bring about a result which is contrary to the fundamental fresh-start policy of the Bankruptcy Code. In rendering my opinion, I am mindful that it would open the door to the situation where a debtor moves from the dwelling house 10 years after bankruptcy, but finds the equity in his house suddenly levied upon by the trustee in bankruptcy. Surely a debtor’s fresh start is not well fostered by this possibility. Yet on the other hand the result is consistent with both the purposes of the Bankruptcy Code and the purpose of the California automatic dwelling-house exemption. It is consistent with the Code because it provides creditors with every bit of property they are legally entitled to in exchange for having their claims discharged. It is consistent with the California exemption chosen because it ful ly protects the debtor from the forced sale of a certain part of the homestead without providing an alternative chance to start over. See CCP § 690.31(j). When the Bankruptcy Code was drafted, it did not have California particularly in mind. It was written as a universal document with the Code provisions exercised uniformly among the various states. If any result achieved under my view is contrary to a fresh-start policy, it is not because of the universal application of the Code, but instead caused by the peculiar nature of the state exemption relied upon. Any unfortunate result reached under the laws of California can be changed through consideration and action by the California Legislature. This Panel’s apparent authority to fractionalize the uniform operation of the Code" }, { "docid": "4752381", "title": "", "text": "of the lien obtained under § 544(a) is the lesser of the total of all unsecured claims or the amount of equity in the property upon which the § 544(a) lien could attach on the date the petition is filed. By limiting the value of the lien to the value of property available on the date the petition was filed, the rights of creditors to secure equality in distribution and the legislative priority of preserving to the debtor a fresh start are fully balanced. Under a normal absolute exemption statute a lien valuation would not be necessary. The peculiar limited nature of the California dwelling-house exemption, however, requires that the lien of the trustee be valued currently such that it can be paid in the future when the exemption no longer prevents execution on the property. Having reached this point the question arises as to the length of time the trustee should be able to exercise his rights in the equity preserved for the estate. There is nothing in the Bankruptcy Code to indicate that the trustee’s rights as a judicial lien creditor are confined to the point in time when the bankruptcy case is commenced. That is merely the time the trustee’s rights are created. In re Bouchard, 11 B.R. 869 (Bkrtcy.S.D.Cal.1981). The trustee herein obtains a lien which is measured by the rights that a judicial lien creditor would have under the laws of California. In re Sanford, supra. Under California law a judicial lien exists a minimum of 10 years unless extended through supplemental proceedings. California Code of Civil Procedure §§ 674(a), 685. Therefore, I would hold that as long as the trustee remains in the case his lien could, be effective for more than 10 years. Having discussed the trustee’s lien, its value, and effective life, we must now discern what effect California law would have on the trustee’s lien. Under California law, a lien creditor can execute against the dwelling house of the debtor after application has been made and the court finds that the current value of the dwelling house, over and above all" }, { "docid": "2640168", "title": "", "text": "date of adjudication and thereafter, the trustee remained subject to the persisting right which the Nevada law gave the bankrupt, as against the creditor categories under which the trustee’s rights were subsumed, to assert and perfect a homestead exemption. No point was made of the fact that the nonbankrupt wife was the moving party. There is no indication that the court considered this a matter of importance. Thus the distinction urged by the trustee does not warrant a difference in result. In his second and more substantial contention, the trustee relies upon a difference between the homestead laws of Nevada and those of California. He points out that the present Section 70, sub. c of the Bankruptcy Act as amended, formerly Section 47, sub. (2), gives the trustee, with reference to all of the property of the bankrupt in his possession at the time of bankruptcy, “all the rights, remedies, and powers of a creditor then holding a lien thereon by legal or equitable proceedings, whether or not such a creditor actually exists.” Under the Nevada homestead law in the Myers case, it was clear that no such creditor as the statute described could prevail over a homestead exemption recorded after his lien had attached, so long as the property had not actually been sold. Here it is argued that under the California law there is a type of creditor “holding a lien thereon by legal or equitable proceedings”, namely, a judgment creditor who ha-s recorded the abstract of his judgment, whose lien would prevail over subsequent recordation of a homestead claim. It is not disputed that under California law such recording of a judgment creates a lien which prevails over subsequent homestead recordation. The decisive issue thus becomes the meaning of the words “holding a lien thereon by legal or equitable proceedings”. If “by legal or equitable proceedings” means by judicial proceedings, we think the language does not cover such a lien as the trustee seeks to assert. A California judgment does not of its own force become effective as a lien on California land. The pertinent judicial processes," }, { "docid": "2446969", "title": "", "text": "a judicial lien creditor to the extent of the unsecured creditors of the estate. In re Martin, supra, at 832. CONCLUSION Although the Debtor was entitled to exempt his residence at 857 Sacramento Avenue, Spring Valley, California, under the limited exemption provided by Cal.Code Civ.Proc. § 690.31 at the time of the filing of his petition in bankruptcy, he subsequently lost this exemption when his spouse and family vacated the premises. Therefore, the Trustee is entitled to enforce any and all of his rights under 11 U.S.C. § 544. The foregoing shall constitute Findings of Fact and Conclusions of Law pursuant to Bankruptcy Rule 752. The Trustee shall prepare an order consistent herewith within 10 days from the date hereof. . Title 11 U.S.C. § 544(a)(1) of the Bankruptcy Code provides as follows: “(a) The trustee shall have, as of the commencement of the case, and without regard to any knowledge of the trustee or of any creditor, the rights and powers of, or may avoid any transfer of property of the debtor or any obligation incurred by the debtor that is voidable by— (1) a creditor that extends credit to the debtor at the time of the commencement of the case, and that obtains, at such time and with respect to such credit, a judicial lien on all property on which a creditor on a simple contract could have obtained a judicial lien, whether or not such a creditor exists;” . See CC § 1243 (West.). . It should be noted that the District Court in In re Sanford, 8 B.R. 761 (N.D.Cal.1981) allowed an exemption claimed under CCP § 690.-31. However, the facts there presented apparently did not present the question of the ending of the exemption by vacation of the residence. .In California, the period is 10 years. [CCP § 675 (West.)]." }, { "docid": "4752355", "title": "", "text": "OPINION Before KATZ, HUGHES and VOLINN, Bankruptcy Judges. HUGHES, Bankruptcy Judge: The debtors have appealed an order holding that their home, although exempt from property of the estate, was subject to a continuing lien in favor of the trustee in bankruptcy. The exemption claim was based on California Code of Civil Procedure § 690.31. The claim of lien was based on 11 U.S.C. § 544(a)(1). The order appealed provides that the trustee may enforce the lien if and when the debtors sell or refinance their exempt home. Judge Volinn and I agree, but for different reasons, that the order should be reversed to the extent it recognizes a lien. Accordingly, the order appealed is reversed. My analysis, which considers only federal law, follows. I Unlike my brothers, I do not believe that 11 U.S.C. § 544(a)(1) gives the trustee a continuing lien on property of the estate. As discussed in Part II, I read the statute as giving the trustee only the rights and powers, i.e., the status, of a judicial lien creditor and then only “as of the commencement of the case...” Furthermore, any lien created on exempt property by section 544(a)(1) would be nullified by 11 U.S.C. § 522(f)(1), which permits the debtor to avoid any judicial lien on property that impairs the debtors’ exemption. It is evident that the trustee seeks to impair Mr. and Mrs. Weiman’s exemption by means of a judicial lien. Section 544 gives the trustee the “rights and powers” of a creditor holding a judicial lien on property of the debtor “as of the commencement” of the case. But any actual judicial lien held by the Weimans’ creditors on their otherwise exempt home could have been avoided under section 522(f)(1). In re Baxter, 19 B.R. 674 (9th Cir. Bkrtcy. App.1982); In re Dahdah, 20 B.R. 665 (9th Cir. Bkrtcy.App.1982). It would be anomalous if section 522(f)(1) could permit the debtor to avoid actual liens but not fictitious ones. However, in my opinion, there is no need to invoke section 522(f)(1). II The trustee’s case rests upon the proposition that 11 U.S.C. § 544(a)(1)" }, { "docid": "4652968", "title": "", "text": "of his home where no equity exists above the exemption amount. Turning to the language of Cal. Code of Civil Procedure § 704.800, it is clear that whatever the nature of the debtor’s interest may be, given no value in excess of liens against the property plus statutory exemption, the property is exclusively that of the debtor’s beyond all reach by his creditors so long as that condition obtains. To consider the nature of the debtor’s interest in the property in this context is a gratuitous exercise. The effect of a valid homestead exemption claim is the central issue of this appeal. The majority concludes that while the debtor derives his statutory homestead from the legislative policy of preserving “family life and preventing homelessness” this is not to be confused “with protection of a specific residence from creditors.” The majority would hold that the debtor’s exemption only entitles him to the money equivalent of his equity position at the time of filing, up to the maximum exemption amount; and that there is no protected interest in continued residence within specific property. Not only is this theory at odds with the language and spirit of the exemption statute, it is in conflict with a previous holding of this Panel. In Wei-man v. Stopher (In re Weiman), 22 B.R. 49 (9th Cir.BAP 1982), the Pánel held that § 544 does not endow the trustee with the continuing lien of a judgment creditor on the debtor’s property. In Weiman, the trial court had previously ruled that while the debtors’ home was exempt from property of the estate, it was nevertheless subject to a continuing lien under California law in favor of the trustee in the amount of the allowed unsecured claims in the estate. The trustee would have thus been able to execute on the lien at some later date, post-bankruptcy, in order to satisfy these claims. The Panel reversed, concluding that § 544 granted the trustee only the rights of one holding a judgment lien as of a particular point in time, the commencement date of the case, which rights did not" } ]

[ { "docid": "22265639", "title": "", "text": "The court must also evaluate the adequacy of the decree “by weighing the plaintiff’s likelihood of success on the merits against the amount and form of the relief offered in the settlement.” Carson, 450 U.S. at 88 n. 14, 101 S.Ct. at 998 n. 14. See, e.g., United States v. Trucking Employers, Inc., 561 F.2d 313, 317 (D.C.Cir. 1977); Stotts, 679 F.2d at 552; Airline Stewards and Stewardesses, 573 F.2d at 964; Plummer, 668 F.2d at 660. A court may not withhold approval simply because the benefits accrued from the decree are not what a successful plaintiff would have received in a fully litigated case. See Trucking Employers, Inc., 561 F.2d at 317. A decree is a compromise which has been reached after the risks, expense, and delay of further litigation have been assessed. See, e.g., Stotts, 679 F.2d at 557; Moore, 615 F.2d at 1271; Luevano v. Campbell, 93 F.R.D. 68, 86 (D.C.1981). Class counsel and the class representatives may compromise their demand for relief in order to obtain substantial assured relief for the plaintiffs’ class. The court should defer to the judg ment of experienced counsel who has competently evaluated the strength of his proofs. See Stotts, 679 F.2d at 554; Cotton v. Hinton, 559 F.2d at 1330; FMC Corp., 528 F.2d at 1173. Significantly, however, the deference afforded counsel should correspond to the amount of discovery completed and the character of the evidence uncovered. See Flinn v. FMC Corp., 528 F.2d 1169, 1173 (4th Cir.1975); Women’s Committee v. National Broadcasting Co., 76 F.R.D. 173, 176 (S.D.N.Y.1977). The court should insure that the interests of counsel and the named plaintiffs are not unjustifiably advanced at the expense of unnamed class members. See Plummer, 668 F.2d at 660; Franks v. Kroger Co., 649 F.2d 1216, 1225 (6th Cir.1981), vacated, 670 F.2d 71 (1982). Objections raised by members of the plaintiff class should be carefully considered. Finally, the court should consider whether the proposed consent decree is consistent with the public interest. See City of Miami, 664 F.2d at 441; Village of Arlington Heights, 616 F.2d 1006, 1014 (7th Cir.1980)." } ]

[ { "docid": "20951434", "title": "", "text": "the Compensatory Damages Fund. In addition, the settlement creates a $10 million Promotional Achievement Award Fund that will pay bonuses to class members who obtain promotions over a ten year period. The settlement requires Coca-Cola to make pay equity adjustments to correct any existing race-based inequities, estimated by Class Counsel’s expert to cost approximately $43.5 million over ten years. Attorney’s fees and expenses of approximately $20.7 million are provided, and special compensation of the Class Representatives is included. Discussion There is a strong judicial policy in favor of settlement, in order to conserve scarce resources that would otherwise be devoted to protracted litigation. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984). Particularly given the tremendous benefits this settlement provides to the class, there is every reason to avoid the substantial burden of further litigation. Indeed, preventing the class from obtaining reforms and compensation for years, if at all, would be inappropriate. This settlement also fulfills the policies and purposes underlying the civil rights statutes at issue in this litigation by strengthening equal opportunity and promoting model voluntary measures to improve the workplace. See Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977) (remarking that for Title VII cases, “the policy favoring settlement is even stronger in view of the emphasis placed upon voluntary conciliation by the Act itself’). Courts have developed a common test for settlement approval: whether the settlement is (1) fair, adequate and reasonable, and (2) not the product of collusion between the parties. Cotton, 559 F.2d at 1330 (5th Cir.1977); Bennett, 737 F.2d at 986. Under this test, the settlement merits approval. I. The Settlement Is Fair, Adequate and Reasonable. In Bennett v. Behring, the Eleventh Circuit approved a district court’s reliance on the following six factors in assessing the fairness of a class action settlement: (1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and amount of opposition to" }, { "docid": "16561435", "title": "", "text": "1326, 1331 (5th Cir.1977). It is also established, however, that courts must independently evaluate class-action settlements for fairness, adequacy, and reasonableness, since the settlement process may be subject to abuse. Piambino v. Bailey, 757 F.2d 1112, 1139 (11th Cir.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 976 (1986); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1169 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). Lastly, because a consent decree may invoke the court's power to do what the parties alone do not have the authority to do, the court must ensure that the proposed decree is not illegal or against public policy, United States v. City of Alexandria, 614 F.2d 1358, 1362 (5th Cir. 1980); White v. State of Alabama, 867 F.Supp. 1519, 1533 (M.D.Ala.1994). 2. Fairness, Adequacy, and Reasonableness In determining whether a proposed settlement is fair, adequate, and reasonable, a court may examine the following factors: (1) the views of the class members; (2) the views of class counsel; (3) the substance and amount of opposition to the settlement; (4) the possible existence of collusion behind the settlement; (5) the stage of the proceedings; (6) the likelihood of success at trial; (7) the complexity, expense, and likely duration of the lawsuit; and (8) the range of possible recovery. White v. State of Alabama, 867 F.Supp. at 1533. See Leverso v. SouthTrust Bank of Alabama, Nat. Assoc., 18 F.3d 1527, 1530 n. 6 (11th Cir.1994); Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984). Before examining the views of a class regarding a proposed settlement, the court should ensure that class members have been given notice of the settlement, as required by Rule 23(e) of the Federal Rules of Civil Procedure. Adequate notice was given to class members, as described above, and a fairness hearing was held. Noting that there have been no objections from individuals who identified themselves as class members and that there is no apparent conflict of interest in the class, the court assumes that the plaintiff class overwhelmingly supports the proposed consent" }, { "docid": "8780979", "title": "", "text": "rule” that a district court must follow in approving a proposed class settlement. Cotton, 559 F.2d at 1330. The district court may approve a settlement only if it “is fair, adequate, and reasonable, and ... not the product of collusion between the parties.” Id. (citing Young v. Katz, 447 F.2d 431 (5th Cir.1971)); accord Bennett, 737 F.2d at 986; In re Chicken Antitrust Litigation, 669 F.2d 228, 238 (5th Cir.1982). After applying this rule to this case, the court approves the settlement. A. A Court Examines Six Factors in Determining Whether a Class Settlement is Fair, Adequate, and Reasonable. In Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984), the Eleventh Circuit approved the district court’s consideration of six factors in determining whether a proposed settlement was fair, adequate, and reasonable. These factors are (1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the complexity, expense, and duration of the litigation; (5) the substance and amount of opposition to the settlement; (6) the stage of proceedings at which the settlement was achieved. Id.; see also In re Corrugated Container Antitrust Litigation, 643 F.2d 195, 212 (5th Cir.1981) (developing a three-step process of approval equivalent to the first three considerations of Bennett). In evaluating these considerations, the district court should not try the case on the merits. Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977). The court can rely upon the judgment of experienced counsel and, absent fraud, “should be hesitant to substitute its own judgment for that of counsel.” Id. (citing Flinn v. FMC Corporation, 528 F.2d 1169 (4th Cir.1975)). With this in mind, the court now analyzes the proposed settlement in light of the Bennett considerations. 1. The likelihood of success at trial was jeopardized by the risks of establishing liability. The plaintiffs success at trial could not be guaranteed. The complaint asserted claims of fraudulent nondisclosure in violation of § 14(a) of the 1934 Act, 15 U.S.C. § 78n(a), and Rule" }, { "docid": "16475790", "title": "", "text": "for Justice v. Civil Service Commission, 688 F.2d 615, 625 (9th Cir.1982), cert. denied, 459 U.S. 1217, 103 S.Ct. 1219, 75 L.Ed.2d 456 (1983). The Court’s approval is necessary to en sure that Class Members’ rights have been given due regard and adequate protection by the negotiating parties. It recognizes, however, that the essence of settlement is compromise. Compromise involves the moderation of lofty and idealized hopes and the relinquishment of unyielding and absolute positions. Officers for Justice, 688 F.2d at 624; Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977). The law favors settlement. It is indeed the preferred means of dispute resolution, particularly in complex class action litigation such as this. Voluntary resolution is in the public interest, Officers for Justice, 688 F.2d at 625, Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir.1976), Nelson v. Bennett, 662 F.Supp. 1324, 1334 (E.D.Cal.1987), and the Court must determine whether the interests of the Classes will be better served by resolution of the litigation than by continuation of it. The Court must and will consider many things in assessing the fairness, reasonableness and adequacy of these settlements. They include some or all of the following: —the strength of plaintiffs’ case —the risk, expense, complexity, and likely duration of further litigation —the amount offered in settlement —the relationship of the settlement amount with the likelihood of success and potential range of recovery at trial —defendant’s ability to pay a judgment larger than the amount provided by the proposed settlement —The extent of discovery completed and the stage of proceedings —the experience and views of counsel —the reaction of class members to the proposed settlement. See Officers for Justice, 688 F.2d at 625; Marshall v. Holiday Magic, Inc., 550 F.2d 1173, 1178 (9th Cir.1977); Order of July 28, 1988 at 3. Additionally, the Court must be convinced that each settlement is the product of good faith negotiations conducted at arms’ length and that there has been no fraud, overreaching, or collusion on the parts of the negotiating parties. Officers for Justice, 688 F.2d at 625, Ellis v. Naval Air Rework" }, { "docid": "8780978", "title": "", "text": "should be encouraged to determine their respective rights between themselves.” Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir. 1977) (citing United States v. AlleghenyLudlum Industries, Inc., 517 F.2d 826 (5th Cir.1975)). This policy has special importance in class actions with their notable uncertainty, difficulties of proof, and length. Cotton, 559 F.2d at 1331; see also Van Bronkhorst v. Safeco Corp., 529 F.2d 943, 950 (9th Cir.1976). Settlements of complex cases contribute greatly to the efficient utilization of scarce judicial resources, Cotton, 559 F.2d at 1331, and achieve the speedy resolution of justice, for a “just result is often no more than an arbitrary point between competing notions of reasonableness,” In re Corrugated Container Antitrust Litigation, 659 F.2d 1322, 1325 (5th Cir.1981), cert. denied, 456 U.S. 998, 102 S.Ct. 2283, 73 L.Ed.2d 1294 (1982). A court promotes this policy through Fed.R.Civ.P. 23(e). Fed.R.Civ.P. 23(e) requires judicial approval of any class action, but does not provide any standards of approval. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984). Federal courts have developed the “cardinal rule” that a district court must follow in approving a proposed class settlement. Cotton, 559 F.2d at 1330. The district court may approve a settlement only if it “is fair, adequate, and reasonable, and ... not the product of collusion between the parties.” Id. (citing Young v. Katz, 447 F.2d 431 (5th Cir.1971)); accord Bennett, 737 F.2d at 986; In re Chicken Antitrust Litigation, 669 F.2d 228, 238 (5th Cir.1982). After applying this rule to this case, the court approves the settlement. A. A Court Examines Six Factors in Determining Whether a Class Settlement is Fair, Adequate, and Reasonable. In Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984), the Eleventh Circuit approved the district court’s consideration of six factors in determining whether a proposed settlement was fair, adequate, and reasonable. These factors are (1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the complexity, expense, and duration of" }, { "docid": "16561434", "title": "", "text": "the submission of briefs. C. Approval of the Consent Decree The proposed consent decree in this case would require and facilitate the implementation of a race-neutral annexation policy for the City of Foley. Under the consent decree, the majority-black areas of Beulah Heights and Mills Quarters would have the opportunity to choose annexation to Foley, potentially providing them with needed city services and support. Other surrounding areas, some of whose annexations have been blocked by the Department of Justice in the past; would also have the opportunity to choose annexation under the same terms and conditions as the two majority-black areas. African-Americans living in West Mills (Area 7 on the attached map) would also benefit from the consent decree. Although Foley would not formally annex that area because it is not contiguous to the city’s current or proposed boundaries, the city would provide it with essential water services. 1. Standard of Review It is well-settled that judicial policy favors voluntary settlement for resolution of class-action as well as other cases. Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977). It is also established, however, that courts must independently evaluate class-action settlements for fairness, adequacy, and reasonableness, since the settlement process may be subject to abuse. Piambino v. Bailey, 757 F.2d 1112, 1139 (11th Cir.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 976 (1986); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1169 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). Lastly, because a consent decree may invoke the court's power to do what the parties alone do not have the authority to do, the court must ensure that the proposed decree is not illegal or against public policy, United States v. City of Alexandria, 614 F.2d 1358, 1362 (5th Cir. 1980); White v. State of Alabama, 867 F.Supp. 1519, 1533 (M.D.Ala.1994). 2. Fairness, Adequacy, and Reasonableness In determining whether a proposed settlement is fair, adequate, and reasonable, a court may examine the following factors: (1) the views of the class members; (2) the views of class counsel; (3) the" }, { "docid": "3664967", "title": "", "text": "various electoral and demographic issues. This Court further instructed the parties to file post-hearing memoranda regarding the issues raised in the affidavits and to address the objectors’ concerns about the adequacy and competence of the plaintiffs’ counsel. II. CLASS ACTION SETTLEMENT A. Terms of the Proposed Settlement. Under the terms of the proposed settlement, the plaintiffs, as individuals and class representatives, have agreed to have the instant action certified as a class action with respect to the constitutionality and statutory validity of the City’s 4-3 plan. Then, if this Court approves the settlement agreement, the plaintiffs have agreed to dismiss the action with prejudice. In return, the City has agreed to submit a proposed ordinance to City Council which would amend the City’s Revised Charter to permit any member of City Council to serve as Chairman and Chairman Pro-Tern. The City also has agreed to cooperate with the County Supervisor of Elections in developing and implementing programs to increase the participation of black electors in municipal elections. B. Standards for Approval of the Proposed Settlement The Court initially recognizes the principle that settlements are highly favored in the law. Miller v. Republic National Life Ins. Co., 559 F.2d 426 (5th Cir.1977). The Court is required to make a two part determination that: 1) there is no fraud or collusion in reaching the settlement, and 2) the settlement is fair, adequate and reasonable. Bennett v. Behring Corp., 737 F.2d 982 (11th Cir.1984); Ruiz v. McKaskle, 724 F.2d 1149 (5th Cir.1984); Cotton v. Hinton, 559 F.2d 1326 (5th Cir.1977); In Re Dennis Greenman Securities Litigation, 622 F.Supp. 1430 (S.D.Fla.1985). In assessing whether a proposed settlement is fair, adequate and reasonable, the Court will consider the following factors: 1) The likelihood of success at trial and potential recovery; 2) The complexity, expense, and duration of litigation; 3) The terms of the settlement; 4) The procedures afforded to notify the class members of the proposed settlement, and to allow them to present their views; 5) The judgment of experienced counsel for the Plaintiff class; 6) The substance and the amount of opposition to the" }, { "docid": "10622323", "title": "", "text": "Pursuant to the, schedule included in the Hearing Order, plaintiffs counsel has caused the approved form of notice to be mailed to more than 3,900 persons or entities who purchased the common stock of defendant Nutmeg Industries, Inc. during the Class Period. In addition, notice using 8-point type was published nationwide in the August 20, 1992, edition of The Wall Street Journal. No individual or entity has objected to the proposed settlement. II. DISCUSSION It is “the policy of the law generally to encourage settlements.” Florida Trailer and Equipment Co. v. Deal, 284 F.2d 567, 571 (5th Cir.1960). The Court of Appeals for the Fifth Circuit has explained that, “[p]articularly in class action suits, there is an overriding public interest in favor of settlement.” Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977). The district courts are afforded broad discretion in determining whether to approve a proposed class action settlement, and in doing so give considerable weight to the views of experienced counsel as to the merits of the settlement. Cotton v. Hinton, 559 F.2d at 1330-32. As settlements are construed upon compromise, the merits of the parties’ claims and defenses are delib erately left undecided. Judicial evaluation of a proposed settlement of a class action thus involves a limited inquiry into whether the possible rewards of continued litigation with its risks and costs are outweighed by the benefits of the settlement. See Mashburn v. Nat’l Healthcare, Inc., 684 F.Supp. 660 (M.D.Ala.1988). Due to the nature of class actions by which the claims and rights of numerous faceless class members are adjudicated, usually without pei’sonal legal representation, it is the province of the Court as a fiduciary to the class to evaluate the fairness of the settlement. Courts generally weigh and analyze several factors, which have been stated in various terms by different courts, to determine whether the proposed settlement is fair and equitable under the circumstances. Six factors have generally been enumerated for consideration: (1) The existence of fi’aud or collusion behind the settlement; (2) The complexity, expense, and likely duration of the litigation; (3) The stage of the" }, { "docid": "5312017", "title": "", "text": "opt out. A. Fairness of the Consent Decree Rule 23(e) states that “[a] class action shall not be dismissed or compromised without the approval of the court.” Before it can approve a settlement a district court “must find that the settlement is fair, adequate and reasonable and is not the product of collusion between the parties.” Cotton, v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977); see Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir.1996); Van Horn v. Trickey, 840 F.2d 604, 606 (8th Cir.1988); Grant v. Bethlehem Steel Corp., 823 F.2d 20, 22 (2d Cir.1987). The court’s primary task is to evaluate the terms of the settlement in relation to the strength of the plaintiffs’ ease. See, e.g., Isby, 75 F.3d at 1199. The court should not reject a settlement merely because individual class members complain that they would have received more had they prevailed after a trial. See EEOC v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir.1985); see also United States v. Trucking Employers, Inc., 561 F.2d 313, 317 (D.C.Cir.1977). The dissident members of the class in this case contend that for a host of reasons the district court abused its discretion in approving the consent decree as fair. We conclude, to the contrary, that the settlement is eminently fair and reasonable to the class as a whole. First, with respect to the class-wide relief the dissidents complain that the consent decree does not (1) alter the Department’s allegedly discriminatory assignment system, (2) give any “relief for retaliatory acts taken by the Department,” or (3) provide for the expungement of employee records infected with discrimination. In making the first two charges the dissidents seem oblivious to the significant monetary, reinstatement, and promotional relief awarded to class members who claim the Department discriminated or retaliated against them. Moreover, the injunction prohibits discrimination in general and in assignments in particular, forbids retaliation, and prescribes monitoring procedures so that class counsel can ensure the Department complies. Together these provisions of the consent decree both redress past and deter future discrimination in assignments and inhibit future retaliation. Finally," }, { "docid": "740354", "title": "", "text": "district court judge in deciding whether to approve or disapprove a class action settlement. Three general propositions are of universal application. First, it has been repeatedly recognized that settlements are “ ‘highly favored in the law and will be upheld whenever possible because they are means of amicably resolving doubts and preventing lawsuits.’ ” Miller v. Rep. Nat. Life Ins. Co., 559 F.2d 426, 428 (5th Cir.1977) (citations omitted). Second, [i]n class actions this policy must be coupled with the two-fold requirement that (1) there is no fraud or collusion in arriving at the settlement and (2) the settlement is fair, adequate and reasonable. Id. at 428-29 (citations omitted). Third, although approval of a settlement is a matter left to the court’s discretion, “[I]t is essential that the trial judge support his conclusions by memorandum opinion or otherwise in the record,” so that in the event of an appeal, the appellate court will have an adequate basis upon which to determine whether there has been an abuse of discretion. Id. at 1330; see, also, Protective Committee v. Anderson, 390 U.S. 414, 434, 88 S.Ct. 1157, 1168, 20 L.Ed.2d 1 (1968); In re Corrugated Container Antitrust Litigation, 643 F.2d 195, 213 (5th Cir.1981) (hereinafter “Corrugated Cases”); Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977). A number of factors have been identified as bearing upon the fairness, adequacy and reasonableness of a proposed settlement. The Court considers the following to be of relevance in this ease: (1) the likelihood of success at trial. See Corrugated Cases, supra, 643 F.2d at 212. (2) “[a] range of possible recovery that plaintiffs would realize if they prevailed at trial”. Id. (3) “[t]he point on, or if appropriate, below the range of possible recovery at which a settlement is fair and adequate”. Id. (4) The complexity, expense and duration of litigation. Id. at 217, citing City of Detroit v. Grinnell Corp., 495 F.2d 448, 463 (2d Cir.1974). (5) The substance and the amount of opposition to the settlement. Cotton v. Hinton, supra, 559 F.2d at 1331. (6) The stage of the proceedings at which the" }, { "docid": "20951435", "title": "", "text": "and promoting model voluntary measures to improve the workplace. See Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977) (remarking that for Title VII cases, “the policy favoring settlement is even stronger in view of the emphasis placed upon voluntary conciliation by the Act itself’). Courts have developed a common test for settlement approval: whether the settlement is (1) fair, adequate and reasonable, and (2) not the product of collusion between the parties. Cotton, 559 F.2d at 1330 (5th Cir.1977); Bennett, 737 F.2d at 986. Under this test, the settlement merits approval. I. The Settlement Is Fair, Adequate and Reasonable. In Bennett v. Behring, the Eleventh Circuit approved a district court’s reliance on the following six factors in assessing the fairness of a class action settlement: (1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved. Bennett, 737 F.2d at 986. In addition, the judgment of experienced counsel is relevant to approval. See, e.g., Cotton, 559 F.2d at 1330 (stating that trial court is “entitled to rely on upon the judgment of experienced counsel for the parties” in evaluating settlement); see also Warren v. City of Tampa, 693 F.Supp. 1051, 1055 (M.D.Fla.1988), aff'd 893 F.2d 347 (11th Cir.1989); In Re Motorsports, 112 F.Supp.2d 1329, 1333 (N.D.Ga.2000); Meyer v. Citizens and Southern Nat’l Bank, 677 F.Supp. 1196, 1201 (M.D.Ga.1988). These factors strongly support approving this settlement. A. Likelihood of Success at Trial and Range of Potential Recovery First, the benefit this settlement provides to the class, both in terms of injunctive and monetary relief, should be compared with the likely recovery for the class at trial. Cotton, 559 F.2d at 1330. This question implicates the first three of the Bennett factors, which are closely related: “(1) the likelihood of success at trial; (2) the range of possible recovery;" }, { "docid": "23180466", "title": "", "text": "the standard to be applied. Nonetheless, the rubric is now well established that the court will not approve a settlement unless it is found to be fair, adequate, and reasonable. In re Corrugated Container Antitrust Litigation, 643 F.2d 195 (5th Cir. 1981); Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977). In determining the adequacy and reasonableness of the proposed settlement, the court does not adjudicate the dispute, for as we noted in Young v. Katz, 447 F.2d 431, 433 (5th Cir. 1971): “[i]n examining a proposed compromise ... the court does not try the ease. The very purpose of the compromise is to avoid the delay and expense of such a trial.” In evaluating settlement proposals, six factors should be considered: (1) whether the settlement was a product of fraud or collusion; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the factual and legal obstacles prevailing on the merits; (5) the possible range of recovery and the certainty of damages; and (6) the respective opinions of the participants, including class counsel, class representative, and the absent class members. See Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157 (5th Cir. 1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). Our appellate review of the district court’s approval of a settlement is limited; an approved settlement will not be upset unless the court clearly abused its discretion. Young v. Katz, 447 F.2d 431, 432 (5th Cir. 1971). Similar to the function of the trial court, our limited review rule is a product of the strong judicial policy favoring the resolution of disputes through settlement. United States v. City of Miami, 614 F.2d 1322 (5th Cir. 1980). In deciding whether a clear abuse of discretion has occurred, we share the view of our colleagues of the Second, Fourth and Eighth Circuits that, absent fraud or collusion, the most important factor is the probability of the plaintiffs’ success on the merits. See, e.g., Flinn v. FMC Corp., 528 F.2d 1169 (4th Cir." }, { "docid": "23180465", "title": "", "text": "when the court received evidence on the issue of fees for the class attorneys. On March 11, 1981, the court filed a comprehensive Memorandum Opinion and Order which found the settlement to be fair and reasonable. The court also assessed fees for the various class attorneys and allowed their recovery of costs incurred in preparing the matter for trial. On April 10, 1981, the court amended the earlier order to correct clerical errors, to effect one substantive change, and to provide for post-settlement attorney’s fees and apportionment of interest accruing on the deposit. This appeal followed. Objectors maintain that the settlement should be rejected because (1) the terms are not fair and reasonable, (2) the class attorneys did not properly represent the class in negotiations, and (3) the payment of attorneys’ fees out of the class settlement fund creates an impermissible conflict of interest. Mitchell appeals his award of attorney’s fees. I. Fairness and Adequacy of the Settlement Rule 23(e) requires court approval of compromise settlements of class actions, but it is silent as to the standard to be applied. Nonetheless, the rubric is now well established that the court will not approve a settlement unless it is found to be fair, adequate, and reasonable. In re Corrugated Container Antitrust Litigation, 643 F.2d 195 (5th Cir. 1981); Cotton v. Hinton, 559 F.2d 1326 (5th Cir. 1977). In determining the adequacy and reasonableness of the proposed settlement, the court does not adjudicate the dispute, for as we noted in Young v. Katz, 447 F.2d 431, 433 (5th Cir. 1971): “[i]n examining a proposed compromise ... the court does not try the ease. The very purpose of the compromise is to avoid the delay and expense of such a trial.” In evaluating settlement proposals, six factors should be considered: (1) whether the settlement was a product of fraud or collusion; (2) the complexity, expense, and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the factual and legal obstacles prevailing on the merits; (5) the possible range of recovery and the certainty of" }, { "docid": "2605937", "title": "", "text": "prohibitive to require each individual class member to litigate his claim in this case. Moreover, given the large number of potential claims, judicial economy is served by the class action device. The court need not consider any questions relating to the manageability of the class at trial, given that the court is considering a settlement class. Amchem, 521 U.S. at 620, 117 S.Ct. 2231. The court is satisfied that the Rule 23(b)(3) considerations are met in this case. C. Evaluation of the Fairness of the Settlement. The court has found that the class is properly certifiable for settlement purposes. Now, the court will examine the fairness of the proposed settlement. The court applies heightened scrutiny to this case, because the case was certified for settlement purposes. Rule 23(e) provides that a court should approve a settlement if it is fair, reasonable, and adequate, and consistent with the public interest. See Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977). The court will consider the following factors: (1) the plaintiffs’ likelihood of success on the merits, weighed against the amount and form of relief offered in the settlement; (2) the complexity, expense, and likely duration of the litigation; (3) the state of proceedings and the amount of discovery completed; (4) the nature of settlement negotiations; (5) the judgment of experienced counsel; (6) and objections raised by members of the class. Newby, 394 F.3d at 301. The court also considers the public interest in favor of settlement of class action lawsuits. Cotton, 559 F.2d at 1331. The most important factor is the probability of the plaintiffs’ success on the merits. Parker v. Anderson, 667 F.2d 1204, 1209 (5th Cir.1982). Review of the circumstances in this case demonstrates that the monetary benefit and the extensions of the warranty and lease periods far outweigh the plaintiffs’ uncertain prospects of success were the case fully litigated. In reaching this decision, the court finds that the proposed settlement value to the class is approximately $244 million that will be distributed to the class in the form of lease refunds, lease extensions, warranty extensions, and out-of-pocket reimbursement" }, { "docid": "5312016", "title": "", "text": "that if they wished to opt out then they had to filé a motion stating “the reasons for this request, and any law” supporting it. Of the nineteen class members who filed motions to opt out all but nine chose ultimately to remain in the class. The court certified the class under Rule 23(b)(2) and approved the consent decree pursuant to Rule 23(e). ■ The court found that the settlement was “negotiated at arm’s length and presents no danger of collusion”; it then held that the consent decree was fair and reasonable in light of the disputed evidence and the risks of litigation. Nonetheless, the court allowed those class members so desiring to opt out of the consent decree. Id. at 239-44. II. Analysis The Department of State appeals the district court’s decision permitting opt-outs, while the cross-appellants, nine members of the plaintiff class, object to the court’s approval of the consent decree. Class counsel submitted a brief in support of the consent decree but did not take a position concerning the dissidents’ right to opt out. A. Fairness of the Consent Decree Rule 23(e) states that “[a] class action shall not be dismissed or compromised without the approval of the court.” Before it can approve a settlement a district court “must find that the settlement is fair, adequate and reasonable and is not the product of collusion between the parties.” Cotton, v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977); see Isby v. Bayh, 75 F.3d 1191, 1196 (7th Cir.1996); Van Horn v. Trickey, 840 F.2d 604, 606 (8th Cir.1988); Grant v. Bethlehem Steel Corp., 823 F.2d 20, 22 (2d Cir.1987). The court’s primary task is to evaluate the terms of the settlement in relation to the strength of the plaintiffs’ ease. See, e.g., Isby, 75 F.3d at 1199. The court should not reject a settlement merely because individual class members complain that they would have received more had they prevailed after a trial. See EEOC v. Hiram Walker & Sons, Inc., 768 F.2d 884, 889 (7th Cir.1985); see also United States v. Trucking Employers, Inc., 561 F.2d 313, 317" }, { "docid": "8960641", "title": "", "text": "the 30% of the settlement amount sought as attorneys’ fees. II. Legal Standard for Settlement Approval In the class-action context, any proposed class settlement and award of attorneys’ fees requires court approval. See Piambino v. Bailey, 757 F.2d 1112, 1139-42 (11th Cir.1985). In making this determination, a district court is vested with broad discretion, and his or her decision is reviewed for an abuse of discretion. See generally In re Chicken Antitrust Litig. Am. Poultry, 669 F.2d 228, 238 (5th Cir.1982). “In determining whether to approve a proposed settlement, the cardinal rule is that the District Court must find that the settlement is fair, adequate and reasonable and is not the product of collusion between the parties.” Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977). In making this determination, this Court “should always review the proposed settlement in light of the strong judicial policy that favors settlements.” Behrens v. Wometco Enters., Inc., 118 F.R.D. 534, 538 (S.D.Fla.1988), aff'd, 899 F.2d 21 (11th Cir.1990); see also In re U.S. Oil & Gas Litig., 967 F.2d 489, 493 (11th Cir.1992) (noting that “public policy strongly favors the pretrial settlement of class action lawsuits.”). Then-Chief Judge King has stated the following concerning the judicial favoritism shown toward the settlement of large and complex cases, such as this one: This policy has special importance in class actions with their notable uncertainty, difficulties of proof, and length. Settlements of complex cases contribute greatly to the efficient utilization of scarce judicial resources and achieve the speedy resolution of justice, for a just result is often no more than an arbitrary point between competing notions of reasonableness. Behrens, 118 F.R.D. at 588 (internal citations and quotations omitted). The Eleventh Circuit has stated that, in evaluating whether a proposed settlement is “fair, adequate and reasonable,” the district court should look to the following six factors: (1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate, and reasonable; (4) the complexity, expense, and duration of the litigation;" }, { "docid": "16360696", "title": "", "text": "Legal Standard Court approval is required in order to settle a class action. Rule 23(e) provides as follows: A class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs. In granting final approval to a class action settlement, the Court must follow a three step process: First, the Court must preliminarily approve the proposed settlement; Second, members of the class must then be given notice of the proposed settlement; and Third, a hearing must be held, after which the Court must decide whether the proposed settlement is fair, reasonable and adequate. Bailey v. Great Lakes Canning, Inc., 908 F.2d 38, 42 (6th Cir.1990); United States v. Jones & Laughlin Steel Corp., 804 F.2d 348, 351 (6th Cir.1986); Williams v. Vukovich, 720 F.2d 909 (6th Cir.1985); Stotts v. Memphis Fire Department, 679 F.2d 541 (6th Cir.), rev’d on other grounds, sub nom. Firefighters Local Union No. 1784 v. Stotts, et al., 467 U.S. 561, 104 S.Ct. 2576, 81 L.Ed.2d 483 (1982); Bronson v. Board of Education of the City School District of the City of Cincinnati, 604 F.Supp. 68 (S.D.Ohio 1984); Thompson v. Midwest Foundation Independent Physicians Ass’n, 124 F.R.D. 154 (S.D.Ohio 1988). In determining whether a proposed class action settlement is fair, reasonable and adequate, this Circuit has identified several factors to be considered. They include: (1) the plaintiffs’ likelihood of ultimate success on the merits balanced against the amount and form of relief offered in the settlement; (2) the complexity, expense and likely duration of the litigation; (3) the stage of the proceedings and the amount of discovery completed; (4) the judgment of experienced trial counsel; (5) the nature of the negotiations; (6) the objections raised by class members; and (7) the public interest. Vukovich, 720 F.2d at 922; Bronson, 604 F.Supp. at 73; Thompson, 124 F.R.D. at 157. In determining the fairness, adequacy and reasonableness of the proposed Settlement, this Court need not reach ultimate conclusions of fact regarding the" }, { "docid": "17343285", "title": "", "text": "Order Preliminarily Approving Class Action [D.E. 155]. Under Rule 23(e), Fed.R.Civ.P., “[a] class action shall not be dismissed or compromised without the approval of the court, and notice of the proposed dismissal or compromise shall be given to all members of the class in such manner as the court directs.” While the Rule does not provide standards for approval, those standards have been articulated time and time again in reported decisions. First, there exists “an overriding public interest in favor of settlement, particularly in class actions that have the well-deserved reputation as being most complex.” Assoc. for Disabled Americans, Inc. v. Amoco Oil Co., 211 F.R.D. 457, 466 (S.D.Fla.2002); Access Now, Inc. v. Claire’s Stores, Inc., 2002 WL 1162422 *4 (S.D.Fla.2002)(both citing Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977)). A proposed class action settlement should be approved as long as it is “fair, adequate and reasonable and is not the product of collusion between the parties.” Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984). Thus, in reviewing a proposed settlement, as here, the Court must take into account “the clear policy in favor of encouraging settlements, ... particularly in an area where voluntary compliance by the parties over an extended period will contribute significantly toward ultimate achievement of statutory goals.” Patterson v. Newspaper & Mail Deliverers’ Union, 514 F.2d 767, 771 (2d Cir.1975) (citations omitted). Next, the relevant factors the Court should consider in determining whether a settlement is fair, adequate, and reasonable have been enumerated as follows: (1) the likelihood of success at trial; (2) the range of possible recovery; (3) the point on or below the range of possible recovery at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and amount of opposition to the settlement; and (6) the stage of proceedings at which the settlement was achieved. Bennett, 737 F.2d at 986. In assessing these factors, the Court “should be hesitant to substitute ... her own judgment for that of counsel.” In re Smith, 926 F.2d 1027, 1028 (11th Cir.1991). Furthermore, [T]he" }, { "docid": "13451797", "title": "", "text": "approved if it is fair, adequate, reasonable and free of fraud or collusion. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984). In its evaluation of the proposed settlement, the court should be mindful of the judicial policy favoring settlement and cognizant that “compromise is the essence of settlement.” Bennett, 737 F.2d at 986. Settlements conserve judicial resources by avoiding the expense of a complicated and protracted litigation process and are highly favored by the law. Miller v. Republic Nat. Life Ins. Co., 559 F.2d 426, 428 (5th Cir.1977). Although judicial discretion to approve a settlement is broad, the Court should not conduct a trial on the merits. In re Domestic Air Transp. Antitrust Litig., 148 F.R.D. 297, 315 (N.D.Ga.1993). The court is entitled to rely on the judgment of the parties in approving the proposal and should be “hesitant to substitute its own judgment for that of counsel.” Id. at 313 (quoting Cotton v. Hinton, 559 F.2d 1326, 1330 (5th Cir.1977)). The court’s authority likewise does not extend to modification of the settlement; the court njay only approve or disapprove a proposed settlement. Id. at 313. Overall, the court must be satisfied that the settlement was not a product of collusion but reached pursuant to arms length negotiations between the parties after significant discovery. Id. at 313. III. DISCUSSION In analyzing whether the proposed settlements protect the interests of the absent class members, the Court must consider: (1) the likelihood of success at . trial; (2) the range of possible recoveries; (3) the point on or below the range of possible recoveries at which a settlement is fair, adequate and reasonable; (4) the complexity, expense and duration of litigation; (5) the substance and degree of opposition to the settlement; and (6) the stage of the proceedings at which the settlement was achieved. Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984). The Court concludes that the present settlements satisfy the Bennett factors and should be approved. A. THE LIKELIHOOD OF SUCCESS AT TRIAL Plaintiffs’ likelihood of success at trial depends heavily on whether the class would be" }, { "docid": "911577", "title": "", "text": "settlement as the means of resolving class-action eases. Cotton v. Hinton, 559 F.2d 1326, 1331 (5th Cir.1977). The court has applied this policy to voting rights class actions. See, e.g., Crenshaw County, 748 F.Supp. at 823; Dillard v. Town of Louisville, 730 F.Supp. 1546, 1548 (M.D.Ala.1990); Harris v. Graddick, 615 F.Supp. 239, 241-42 (M.D.Ala.1985). It is also established, however, that the settlement process is subject to abuse and, therefore, courts must independently evaluate whether a settlement is fair, adequate, and reasonable. Piambino v. Bailey, 757 F.2d 1112, 1139 (11th Cir.1985), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 976 (1986); Pettway v. American Cast Iron Pipe Co., 576 F.2d 1157, 1169 (5th Cir.1978), cert. denied, 439 U.S. 1115, 99 S.Ct. 1020, 59 L.Ed.2d 74 (1979). For instance, the interests of the class and its lawyer may diverge, or some members of the class may be “sold out” by other members. Pettway, 576 F.2d at 1169. As part of determining fairness, adequacy, and reasonableness, the court must ensure that the settlement is not collusive. Piambino, 757 F.2d at 1139. Finally, the court has the duty of ensuring that the settlement is not illegal or against public policy. United States v. City of Alexandria, 614 F.2d 1358, 1362 (5th Cir.1980); Harris, 615 F.Supp. at 241-42. IV. WHETHER THE SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE In deciding whether a settlement is fair, adequate, and reasonable, a court may examine the following factors: (1) the views of the class members; (2) the views of class counsel; (3) the substance and amount of opposition to the settlement; (4) the possible existence of collusion behind the settlement; (5) the stage of the proceedings; (6) the likelihood of success at trial; (7) the complexity, expense, and likely duration of the lawsuit; and (8) the range of possible recovery. See Leverso v. Southtrust Bank of Alabama, Nat. Assoc., 18 F.3d 1527, 1530 n. 6 (11th Cir.1994); Bennett v. Behring Corp., 737 F.2d 982, 986 (11th Cir.1984); Crenshaw County, 748 F.Supp. at 823. A. Views of Class Members The first place a court should look to determine" } ]

[ { "docid": "22926354", "title": "", "text": "the defendant to inspect and copy papers and documents in its possession, custody, or control, “which are material to the preparation of the defendant’s defense or are intended for use by the government as evidence in chief at the trial.” Fed.R.Crim.P. 16(a)(1)(C). Evidence that the government does not intend to use in its case in chief is material if it could be used to counter the government’s case or to bolster a defense; information not meeting either of those criteria is not to be deemed material within the meaning of the Rule merely because the government may be able to use it to rebut a defense position. See, e.g., United States v. Delia, 944 F.2d 1010, 1018 (2d Cir.1991). Nor is it to be deemed material merely because it would have dissuaded the defendant from proffering easily impeached testimony. See United States v. Gleason, 616 F.2d 2, 24 (2d Cir.1979), cert. denied, 444 U.S. 1082, 100 S.Ct. 1037, 62 L.Ed.2d 767 (1980). An appellate court, in assessing the materiality of withheld information, considers not only the logical relationship between the information and the issues in the case, but also the importance of the information in light of the evidence as a whole. To warrant a new trial, “ ‘[tjhere must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor.’ ” United States v. Maniktala, 934 F.2d 25, 28 (2d Cir.1991) (quoting United States v. Ross, 511 F.2d 757, 762-63 (5th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975)). Stevens has not shown that the telephone records of his October 11 call to Perez were material within the meaning of Rule 16. He does not suggest that he would have been able to use the records to bolster his defense or to counter the government’s case. The records were used by the government at trial only to rebut Stevens’s testimony that he was with Perez on the night of the attempted sale. His position as to their materiality boils" } ]

[ { "docid": "22926591", "title": "", "text": "and the hope of obtaining favorable evidence does not justify the issuance of such a subpoena.” Caro, 461 F.Supp.2d at 481. This decision was not an abuse of discretion. Caro can only speculate as to what the requested information would have shown. Moreover, his requested Rule 17(c) subpoenas cast a wide net that betokens a “general ‘fishing expedition,’ ” Nixon, 418 U.S. at 700, 94 S.Ct. 3090, and they merely duplicate Caro’s discovery motion under Rule 16(a)(1)(E). D. Finally, we consider the district court’s denial of Caro’s motion under Rule 16(a)(1)(E). Rule 16 differs from Brady, which rests upon due process considerations, and provides the minimum amount of pretrial discovery granted in criminal cases. See United States v. Baker, 453 F.3d 419, 424 (7th Cir.2006) (“Rule 16 ... is broader than Brady.”); United States v. Conder, 423 F.2d 904, 911 (6th Cir.1970) (“We are ... of the view that the disclosure required by Rule 16 is much broader than that required by the due process standards of Brady ”). Setting out the discovery to which defendants are entitled, section (a)(1)(E) provides: Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government’s possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant. Fed.R.Crim.P. 16(a)(1)(E). The government does not dispute that the information requested by Caro is “within the government’s possession, custody, or control,” and Caro does not assert that subsection (ii) or (iii) applies. Id. Therefore, we focus on subsection (i). Under subsection (i), the government must make available to the defendant any requested items that are “material to preparing the defense.” Fed.R.Crim.P. 16(a)(1)(E)(i). For the defendant to show materiality under this rule, “[t]here must be some indication that the pretrial disclosure of the disputed evidence would have enabled" }, { "docid": "12883153", "title": "", "text": "to the issues in this case.” Government’s Brief in Opposition, at 36. In addition, the Government asserts that it has produced “the written correspondence between the [D]efendants and the EDS investigators.” Id. at 37. The Government asserts that it withheld from its Rule 16(a)(1)(C) production two categories of documents: “(1) witness statements obtained by EDS’s investigators; and (2) the work product of EDS’s investigators, such as documents created by EDS’s investigators during the course of the investigation setting forth the investigator’s analysis of the evidence they had gathered.” Id. The Court assumes, in light of the Government’s description of its production, that it has not withheld material intended to be used in its case in chief and that all elements of the file that were obtained from or belong to Defendants have been turned over. Cfi Fed.R.Crim.P. 16(a)(1)(C). The issue thus before the Court is whether the withheld portions of the file constitute evidence material to the preparation of the Defendants’ defense within the meaning of Rule 16(a)(1)(C). The Second Circuit has defined such material evidence as follows: Evidence that the government does not intend to use in its case in chief is material if it could be used to counter the government’s case or to bolster a defense; information not meeting either of those criteria is not to be deemed material within the meaning of the Rule merely because the government may be able to use it to rebut a defense position. ... Nor is it to be deemed material merely because it would have dissuaded the defendant from proffering easily impeached testimony. United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir.1993). “Materiality means more than that the evidence in question bears some abstract logical relationship to the issues in the case.” United States v. Maniktala, 934 F.2d 25, 28 (2d Cir.1991) (quoting United States v. Ross, 511 F.2d 757, 762-63 (5th Cir.1975)) (further citation omitted). Evidence is “material” for purposes of Rule 16(a)(1)(C) if pretrial disclosure will enable the defendant “significantly to alter the quantum of proof in his favor.” See id.; see also United States v." }, { "docid": "18846729", "title": "", "text": "by law.”); U.S.S.G. § 6A1.3(a), p.s. (“In resolving any reasonable dispute concerning a factor important to the sentencing determination, the court may consider relevant information without regard to its admissibility under the rules of evidence applicable at trial, provided that the information has sufficient indicia of reliability to support its probable accuracy.”); see also United States v. Sciarrino, 884 F.2d 95, 97 (3d Cir.) (hearsay admissible at sentencing hearing to determine amount of marijuana involved in offense as long as sufficient indicia of reliability), cert. denied, 493 U.S. 997, 110 S.Ct. 553, 107 L.Ed.2d 549 (1989). Under these principles, the evidence the government produced passes the reliability test. We first note that Deaner gets no benefit from Federal Rule of Criminal Procedure 16. It specifically provides: Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, ... which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant. Fed.R.Crim.P. 16(a)(1)(C) (emphasis added). Rule 16 governs only pretrial discovery. See United States v. Nobles, 422 U.S. 225, 235, 95 S.Ct. 2160, 2168-69, 45 L.Ed.2d 141 (1975). Although Deaner made a general discovery request for “all tangible objects” before pleading guilty, he did not specifically ask to inspect the marijuana or make arrangements for such inspection until after he had entered his plea. Thus, Rule 16 has no application. Deaner’s argument, however, goes beyond reliability and attempts to raise a problem of fundamental fairness implicating constitutional concerns that are rooted in due process. Indeed, as we said in United States v. Rosa, 891 F.2d 1074, 1079 (3d Cir.1989), “We believe the sentence imposed on a defendant is the most critical stage of criminal proceedings, and is, in effect, the ‘bottom-line’ for the defendant, particularly where the defendant has pled guilty.” Resolution of the effect the destruction of the marijuana plants had" }, { "docid": "1627478", "title": "", "text": "are to be filed with the judge “at such intervals as the judge may require.” Id. The purpose of reports directed pursuant to § 2518(6) is “so that any possible abuses might be quickly detected and halted” by the court thereby furthering Congress’ objective in enacting Title III of limiting the extent of court authorized intrusions on the privacy of oral communications. United States v. Kahn, 415 U.S. 143, 154-55, 94 S.Ct. 977, 39 L.Ed.2d 225 (1974). Defendants contend that disclosure of such reports in this case is required to enable them to demonstrate that the issuing judges may have been “misled” as to the progress of the investigation and that, as a result, the judges were prevented from terminating the orders earlier than as provided by the orders’ respective termination dates. LaTona Aff., H 8. Defendants also claim that the requested information will permit the court to more accurately determine, assuming a motion to suppress is filed by Defendants, that the issuing judges should not have granted any further orders and any extensions thereof after the March 9, 1999 order, thus implying that the reports will reveal that the applications for such orders may contain information contradicting the information presented to the judges in the applications for such later orders and extensions. Id. Defendants further assert that the reports may reveal that the agents who executed the orders failed to voluntarily terminate the interceptions upon achieving the objectives of the orders earlier than the stated termination date in the order, thus violating the requirement of § 2518(5). Id., 119. As noted, Fed.R.Crim.P. 16(a)(1)(C) authorizes discovery from the government of documents material to the defense. Excluded from discovery are internal investigative documents “made by the attorney for the government or any other government agent investigating or prosecuting the case.” Fed. R.Crim.P. 16(a)(2). Discovery is material if the information sought is relevant to the case and will lead to the discovery of admissible evidence. See United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir.1993); United States v. Tanner, 279 F.Supp. 457, 469-70 (N.D.Ill.1967). Further, the requested information must have more" }, { "docid": "17255962", "title": "", "text": "must turn it over in compliance with Rule 16. The question presented here is whether statements by the defendant to which the prosecution has no access are discoverable under Rule 16(a)(1)(A). To answer this the court examines what it means to be “in possession, custody, or control of the government” for purposes of Rule 16. The Second Circuit has not ruled on this issue, but courts in this and other circuits have analyzed the phrase “in possession, custody, or control of the government” as it appeal's in Rule 16(a)(1)(C), which relates to the discovery of certain documents and tangible objects. Rule 16(a)(1)(C) provides, in pertinent part: Upon request of the defendant the government shall permit the defendant to inspect and copy or photography books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant. Fed.R.Crim.P. 16(a)(1)(C). Courts have construed the term “government” in this rule narrowly to mean the prosecutors in the particular case or the governmental agencies jointly involved in the prosecution of the defendant, and not the “government” in general. See United States v. Upton, 856 F.Supp. 727, 749-50 (E.D.N.Y.1994) (government not required to produce material from agency outside of United States Attorney’s Office because, there was no “joint investigation”); United States v. Guerrerio, 670 F.Supp. 1215, (S.D.N.Y.1987) (denying Rule 16 discovery request where there was no joint investigation with Bronx District Attorney’s office and United States Attorney’s Office had no control over Bronx material); United States v. Poindexter, 727 F.Supp. 1470, 1477 (D.D.C.1989) (Rule 16 required production of only those documents in hands of prosecutor, any investigative unit under the prosecutor’s control, and other federal agencies “allied with the prosecution”). Another factor in the analysis is whether or not the prosecution has access to the materials. See United States v. Bryan, 868 F.2d 1032, 1035-36 (9th Cir.1989) (scope" }, { "docid": "12076426", "title": "", "text": "Gersh also informed the principal of appellant’s high school that the Army would be willing to send an actual noncommissioned officer assigned to the Special Forces to speak with the students. In view of this evidence of this record, a reasonable factfinder could find or infer beyond a reasonable doubt that the Army was discredited. Finally, appellant summarily argues that his speech was protected by the First Amendment. We agree with the Court of Military Review’s resolution of this issue. 37 MJ at 563-64. The First Amendment does not protect false statements about military operations made by a soldier in uniform to a public audience of high school students during wartime. See generally Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974). The decision of the United States Army Court of Military Review on reconsideration is affirmed. Judges COX, CRAWFORD, GIERKE, and WISS concur. . In this case the Court of Appeals for the District of Columbia described a similar right to discovery provided in Fed.R.Crim.P. 16, as follows: Thus we turn to the defendant's argument that the prior returns are material and discoverable under Rule 16(a)(1)(C) and that the trial court improperly imposed a \"heavy burden” of materiality in denying his Rule 16 motion. Rulé 16(a)(1)(C) states that Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents ... or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense.... Fed.R.Crim.P. 16(a)(1)(C) (1993). To show materiality under this rule the defendant must demonstrate that the requested evidence bears some abstract logical relationship to the issues in the case.... There must be some indication that the pretrial disclosure of the disputed evidence would [enable] the defendant significantly to alter the quantum of proof in his favor. United States v. Caicedo-Llanos, 960 F.2d 158, 164 n. 4 (D.C.Cir.1992) (quoting United States v. Ross, 511 F.2d 757, 762-63 (5th Cir.1975)); see United States v. George, 786 F.Supp. 56, 58 (D.D.C.1992). This materiality" }, { "docid": "1627476", "title": "", "text": "chief against them. Nor do Defendants request a dismissal of the Indictment based on a defect in the pleading or any alleged constitutional violation. Rather, as noted, they seek suppression of evidence based on violations of § 2518. An attack upon the admissibility of evidence derived from a court authorized wiretap or eavesdropping device is directed to the core of the government’s ease. Indeed, at oral argument, the Government stated it did not intend to call as witnesses at trial the cooperating witnesses, who allegedly observed gambling activity at the Grant Street premises and upon whose averments the search warrants and intercept orders were substantially based,, thus effectively conceding that unless fruits of the intercept orders were admitted as evidence, the Government would have no case to present against Defendants at trial. Further, Title III applications and orders, like search warrant applications and warrants, are considered documents material to the defense under Rule 16(a)(1)(C). United States v. Feola, 651 F.Supp. 1068, 1089 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989) (Table), cert. denied, 493 U.S. 834, 110 S.Ct. 110, 107 L.Ed.2d 72 (1989) (defendant provided with discovery of affidavits submitted in support of wiretap application to permit him to challenge validity of wiretap order). Therefore, there is no basis to find that a request for documents which relate to a possible challenge to the admissibility of evidence derived from orders issued pursuant to § 2518(1) is anything but one for the purpose of “preparation of the defendant’s defense,” Fed.R.Crim.P. 16(a)(1)(C), to the Government’s case in chief, and thus within the ambit of Rule 16(a)(1)(C), if Rule 16’s materiality requirement is met. See Armstrong, supra, 116 S.Ct. at 1491 (concurring opinion of Breyer, J.). As such, there is no merit in the Government’s contention that Armstrong bars Defendants’ requests. A. The Request for Progress RepoHs. Pursuant to 18 U.S.C. § 2518(6), a judge who issues an intercept order in accordance with § 2518(1) may direct that reports “showing what progress has been made toward achievement of the authorized objective [of the order] and the need for continued interception” be provided. Such reports" }, { "docid": "22926592", "title": "", "text": "defendants are entitled, section (a)(1)(E) provides: Upon a defendant’s request, the government must permit the defendant to inspect and to copy or photograph books, papers, documents, data, photographs, tangible objects, buildings or places, or copies or portions of any of these items, if the item is within the government’s possession, custody, or control and: (i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant. Fed.R.Crim.P. 16(a)(1)(E). The government does not dispute that the information requested by Caro is “within the government’s possession, custody, or control,” and Caro does not assert that subsection (ii) or (iii) applies. Id. Therefore, we focus on subsection (i). Under subsection (i), the government must make available to the defendant any requested items that are “material to preparing the defense.” Fed.R.Crim.P. 16(a)(1)(E)(i). For the defendant to show materiality under this rule, “[t]here must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor.” United States v. Ross, 511 F.2d 757, 763 (5th Cir.1975), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54. “[E]vidence is material as long as there is a strong indication that it will play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.” United States v. Lloyd, 992 F.2d 348, 351 (D.C.Cir.1993) (citations and internal quotations omitted). The district court denied Caro’s motion upon finding no indication that the information requested by Caro would support Cunningham’s testimony. The information was relevant to future dangerousness and might have allowed Cunningham to formulate scientifically more reliable opinions about Caro and to test various government allegations, e.g., that gang membership made Caro more dangerous. However, Caro presented no facts whatsoever indicating that the information would have actually helped prove his defense. See United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir.1990) (“Neither a general description of the information sought nor conclusory allegations of materiality suffice;" }, { "docid": "21040366", "title": "", "text": "or control of the government,” courts have found that the “possession, custody, or control of the government” requirement includes materials in the hands of a governmental investigatory agency closely connected to the prosecutor. See, e.g., United States v. Scruggs, 583 F.2d 238, 242 (5th Cir.1978). Moreover, under the rule, the prosecution has a continuing duty to disclose any evidence that is subject to discovery or inspection. Fed. R.Crim.P. 16(c). On the other hand, the government need not produce the materials unless there is a request by the defendant, see, e.g., United States v. Lambert, 580 F.2d 740, 745 (5th Cir.1978). And even if there is a request, the government is not obligated to make copies of the items. Rule 16(a)(1)(C) addresses the discovery of documents and tangible ob- jeets. Under Rule 16(a)(1)(C), the government must permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, if the requested items (1) are material to the preparation of the defendant’s defense; (2) are intended for use by the government as evidence in chief at the trial; or (3) were obtained from or belong to the defendant. An item in the first category need not be disclosed unless the defendant demonstrates that it is material to the preparation of his defense. A general description of the item will not suffice; neither will a conclusory argument that the requested item is material to the defense. See United States v. Carrasquillo-Plaza, 873 F.2d 10, 12-13 (1st Cir.1989); United States v. Cadet, 727 F.2d 1453, 1466 (9th Cir.1984). Rather, the defendant must make a specific request for the item together with an explanation of how it will be “helpful to the defense.” See, e.g., United States v. Marshall, 132 F.3d 63, 67-68 (D.C.Cir.1998) (“helpful” means relevant to preparation of the defense and not necessarily exculpatory); United States v. Olano, 62 F.3d 1180, 1203 (9th Cir.1995). As the Fifth Circuit put it in United States v. Buckley, 586 F.2d 498, 506 (5th Cir.1978)" }, { "docid": "10450653", "title": "", "text": "defendant’s motion for such disclosure is hereby GRANTED. Rule 16(a)(1)(C) provides in pertinent part: Upon request of the defendant, the Government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody, or control of the Government, and which are material to the preparation of his defense or are intended for use by the Government as evidence in chief at the trial, or were obtained from or belonged to the defendant. Accordingly, defendant’s motion for such disclosure is hereby GRANTED. Rule 16(a)(2) outlines the information not subject to disclosure, and provides that: Except as provided in paragraphs A, B and D of subdivision (a)(1), this Rule does not authorize the discovery or inspection of reports, memoranda, or other internal Government documents made by the attorney for the Government or other government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses except as provided in 18 U.S.C. § 3500. The United States Court of Appeals for the Sixth Circuit has repeatedly held that Rule 16(a)(2) does not authorize the pre-trial discovery or inspection of statements made by government witnesses or prospective government witnesses. United States v. Wilkerson, 456 F.2d 57 (6th Cir.1972), cert. denied 408 U.S. 926, 92 S.Ct. 2506, 33 L.Ed.2d 337 (1972); United States v. Conder, 423 F.2d 904 (6th Cir.1970), cert. denied 400 U.S. 958, 91 S.Ct. 357, 27 L.Ed.2d 267 (1970). A defendant has no pre-trial access as a matter of right to the names and the criminal records of proposed government witnesses. United States v. Conder, 423 F.2d at 910. Rule 16 does not provide a broader basis for discovery than 18 U.S.C. § 3500, United States v. Carter, 621 F.2d 238 (6th Cir.), cert. denied 449 U.S. 858, 101 S.Ct. 158, 66 L.Ed.2d 73 (1980), nor is the defendant accorded such pre-trial discovery rights under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Further, Rule 16 does not" }, { "docid": "4771834", "title": "", "text": "1032, 1037 (9th Cir.), cert, denied, 493 U.S. 858, 110 S.Ct. 167, 107 L.Ed.2d 124 (1989). A duty to search files maintained by governmental agencies closely aligned with the prosecution may be triggered when there is some reasonable prospect or notice of finding exculpatory evidence. United States v. Brooks, 966 F.2d 1500, 1503 (D.C.Cir.1992). Mere possibilities or utter speculation will not give rise to this duty to search. Id. at 1503-04. “As the burden of the proposed examination rises, clearly the likelihood of a pay-off must also rise before the government can be put to the effort.” Id. at 1504 (citation omitted). Rule 16(a)(1)(C) provides in pertinent part: Upon request of the defendant the government shall permit the defendant to inspect and copy ... books, papers, documents, ... tangible objects, ... which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant. The defendant cannot rely on conclusory allegations or on a general description of the requested information, but must make a prima facie showing of materiality to obtain the requested information. United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir.1990); see United States v. Phillip, 948 F.2d 241, 250 (6th Cir.1991), cert, denied, — U.S. -, 112 S.Ct. 1994, 118 L.Ed.2d 590 (1992). To be “material” for purposes of this rule, the evidence must have “more than ... [an] abstract logical relationship to the issues.” United States v. Ross, 511 F.2d 757, 762 (5th Cir.) (citation omitted), cert, denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975). “There must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor.” Id. at 763. The materiality requirement typically “ ‘is not a heavy burden,’ rather, evidence is material as long as there is a strong indication that ... [the evidence] will ‘play an important role in uncovering" }, { "docid": "1627475", "title": "", "text": "documents and tangible objects in the government’s possession “material” to the defense or to be used at trial by the government as “evidence in chief at trial”) (“Rule 16”) is beyond the purview of Rule 16 unless the defense to which the request relates is directed to the government’s case in chief. Gov’t Response at 2-3. In Armstrong, as defendants sought information upon which to present a selective prosecution challenge to the underlying narcotics trafficking indictment, the Supreme Court held that such a “defense” was not directed to the government’s case in chief and thus was beyond the authority granted by Rule 16. Armstrong, supra, at 463, 116 S.Ct. 1480. Rather, the Court held that discovery requests seeking factual information for the purpose of obtaining dismissal of the indictment based on an alleged violation of the Equal Protection Clause must be based upon an independent showing of a colorable basis for such claim. Armstrong at 470, 116 S.Ct. 1480. Here, Defendants do not seek to establish a defense that is outside the Government’s case in chief against them. Nor do Defendants request a dismissal of the Indictment based on a defect in the pleading or any alleged constitutional violation. Rather, as noted, they seek suppression of evidence based on violations of § 2518. An attack upon the admissibility of evidence derived from a court authorized wiretap or eavesdropping device is directed to the core of the government’s ease. Indeed, at oral argument, the Government stated it did not intend to call as witnesses at trial the cooperating witnesses, who allegedly observed gambling activity at the Grant Street premises and upon whose averments the search warrants and intercept orders were substantially based,, thus effectively conceding that unless fruits of the intercept orders were admitted as evidence, the Government would have no case to present against Defendants at trial. Further, Title III applications and orders, like search warrant applications and warrants, are considered documents material to the defense under Rule 16(a)(1)(C). United States v. Feola, 651 F.Supp. 1068, 1089 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989) (Table), cert. denied, 493 U.S. 834," }, { "docid": "10450652", "title": "", "text": "quoted in United States v. Germain, 411 F.Supp. 719, 727 (S.D. Ohio 1975). Accordingly, defendant’s Motion for a Bill of Particulars is hereby DENIED. Defendant’s motions relating to discovery, and the Court’s consideration of the same, are governed by Rule 16 of the Federal Rules of Criminal Procedure. Rule 16(a)(1)(A) provides in pertinent part: Upon request of a defendant, the Government shall permit the defendant to inspect and copy or photograph: any relevant written or recorded statements made by the defendant, or copies thereof, within the possession, custody or control of the Government, the existence of which is known, or by the exercise of due diligence may become known, to the attorney for the Government; the substance of any oral statement which the Government intends to offer in evidence at the trial made by the defendant whether before or after arrest in response to interrogation by any person then known to the defendant to be a Government agent; and recorded testimony of the defendant before a Grand Jury which relates to the offense charged. Accordingly, defendant’s motion for such disclosure is hereby GRANTED. Rule 16(a)(1)(C) provides in pertinent part: Upon request of the defendant, the Government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody, or control of the Government, and which are material to the preparation of his defense or are intended for use by the Government as evidence in chief at the trial, or were obtained from or belonged to the defendant. Accordingly, defendant’s motion for such disclosure is hereby GRANTED. Rule 16(a)(2) outlines the information not subject to disclosure, and provides that: Except as provided in paragraphs A, B and D of subdivision (a)(1), this Rule does not authorize the discovery or inspection of reports, memoranda, or other internal Government documents made by the attorney for the Government or other government agents in connection with the investigation or prosecution of the case, or of statements made by government witnesses or prospective government witnesses except as provided" }, { "docid": "1540711", "title": "", "text": "for our review except for plain error. Fed.R.Crim.P. 52(b). Recognizing that Brady, though not a discovery rule, affects discovery through its interplay with Rule 16, we will consider the merits of defendant’s Rule 16 appeal. See United States v. Starusko, 729 F.2d 256, 262 (3rd Cir.1984) (“Unlike Rule 16 and the Jenks Act, however, Brady ‘is not a discovery rule, but a rule of fairness and minimum prosecutorial obligation’ ” and is not violated unless the government’s nondisclosure infringes upon a defendant’s right to a fair trial.) (quoting United States v. Beasley, 576 F.2d 626, 630 (5th Cir.1978), cert. denied, 440 U.S. 947, 99 S.Ct. 1426, 59 L.Ed.2d 636 (1979)); see also United States v. Thevis, 84 F.R.D. 47, 50 (N.D.Ga.1979) (“Not only the scope of disclosure, but the timing of the allowed discovery turns on the interplay of Brady’s constitutional command upon the statutory mandates of Rule 16 and the Jenks Act.”). Rule 16 provides: Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings or places, or copies or portions thereof, which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant. Fed.R.Crim.P. 16(a)(1)(C). Consequently, “matters sought must be provided if any of three circumstances exist: they are material to the preparation of his defense; or are intended for use by the government as evidence in chief at trial; or were obtained from or belong to the defendant.” 2 C. Wright, Federal Practice and Procedure § 254, at 66 (2d ed. 1982). It is undisputed that the government did not use or, for that matter, ever intend to use the fourth series of time sheets as evidence in chief at the trial. In a single passing footnote, defendant claims that the Basile fourth series — which he styles as copies of MA time sheets (more accurately, they are copies" }, { "docid": "1770306", "title": "", "text": "to be produced under Rule 16(a)(1)(A), the court finds that defendants’ motions pursuant to this particular subsection should be denied as moot. The court similarly finds that defendants’ motions pursuant to Rule 16(a)(1)(B) should be de nied as moot because of the government’s representation that the defendants have, to its knowledge, no prior records. The bulk of defendants’ motions for Rule 16 discovery lie within the parameters of Rule 16(a)(1)(C), which requires the production of “documents ... which are within the possession, custody or control of the government, and which are material to the preparation of the defendant’s defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant.” Because the government has produced the documents it intends to use at trial, as well as the documents obtained from the defendants, the court will focus its attention on the third prong of the Rule: documents in the government’s possession “which are material to the preparation of the defendant[s’] defense.” Defendants make over one hundred requests under Rule 16. Upon the government’s production of documents material to a defense, defendants have the burden of making a prima facie showing that the government is in possession of information that would be material to the defense. See, e.g., United States v. Little, 753 F.2d 1420, 1445 (9th Cir.1984); United States v. Buckley, 586 F.2d 498, 506 (5th Cir.), cert. denied, 440 U.S. 982, 99 S.Ct. 1792, 60 L.Ed.2d 242 (1979). Materiality under Rule 16(a)(1)(C), “means more than that the evidence in question bears some abstract logical relationship to the issues in the case.” United States v. Ross, 511 F.2d 757, 762 (5th Cir.), cert. denied, 423 U.S. 836, 96 S.Ct. 62, 46 L.Ed.2d 54 (1975). Rather, “[t]here must be some indication that the pretrial disclosure of the disputed evidence would have enabled the defendant significantly to alter the quantum of proof in his favor.” Id. at 763. Rule 16(a)(l)(C)’s materiality requirement reaffirms the notion that this limited discovery device cannot be used to apprise defendants “ ‘of all investigatory" }, { "docid": "18422590", "title": "", "text": "that tax refund checks be delivered to an address within the Eastern District of California. All six returns have been determined by the IRS to be fraudulent and invalid. Of the 100 remaining returns, ninety-three are in possession of IRS Agent Burdick of the Criminal Investigation Division and have not been determined by the IRS to be fraudulent. It is of these returns which defendant seeks discovery. III. The motion is brought pursuant to Rule 16(a)(1)(C), which provides: (C) Documents and Tangible Objects. Upon request of the defendant the government shall permit the defendant to inspect and copy or photograph books, papers, documents, photographs, tangible objects, buildings, or places, or copies or portions thereof, which are within the possession, custody, or control of the government, and which are material to the preparation of his defense or are intended for use by the government as evidence in chief at the trial, or were obtained from or belong to the defendant. Fed.R.Crim.P. 16(a)(1)(C). This rule requires the court first to determine whether the requested materials are within the possession, custody or control of the government. Next, the court determines whether the material is relevant to the defendant’s defense, intended by the government for use in its case in chief, or was obtained from or belongs to the defendant. A. Possession, Custody or Control of the Government. The discovery motion presents the question whether, under to Rule 16(a)(1)(C), the “government” includes any persons other than the prosecutors. It is a question heretofore unanswered by the Ninth Circuit. Defendant’s discovery request requires the court to construe the term “government” to include an IRS investigative agent and indeed, agencies of the United States government not directly connected with the prosecution. The government argues, in essence, that the court should not grant the discovery motion because the government is not in possession of the requested materials. Relying on United States v. Gatto, 763 F.2d 1040 (9th Cir.1985), the government claims that “possession of the government” for Rule 16 means actual possession of the prosecution. Because the requested materials are in the possession of the IRS, and" }, { "docid": "15726005", "title": "", "text": "and her family members.” Dkt. 788. The call was placed about 15 minutes after the Phillips murder. The identifying information redacted from the call reflects that the address given by the caller was near the site of the murder. The caller reports that the men outside her window say that they just killed a man on her block. II. Discussion Federal Rule of Criminal Procedure Rule 16(a)(1)(E) sets out the rights of an indicted criminal defendant to production of documents and objects from the government. A defendant may request “books, papers, documents, data, photographs, tangible objects, buildings or places or copies of portions of any of these items.” Id. The government must produce a requested item if it is “within the government’s possession, custody, or control” and either “(i) the item is material to preparing the defense; (ii) the government intends to use the item in its case-in-chief at trial; or (iii) the item was obtained from or belongs to the defendant.” Id. An item is “material to preparing the defense” under Rule 16 “if it could be used to counter the Government’s case or bolster a defense.” United States v. Stevens, 985 F.2d 1175, 1180-81 (2d Cir.1993). Although Rule 16 does not specifically enumerate recordings of phone calls as an item within its, scope, such recordings, whether embodied in tapes or CDs or elsewhere, are, at a minimum, “tangible objects” which the defendant may request. See United States v. Terry, 702 F.2d 299, 312-13 (2d Cir.1983) (treating tapes of conversations as tangible objects covered by Rule 16); United States v. Martinez, 844 F.Supp. 975, 982 (S.D.N.Y. 1994) (“[Telephone records are discoverable objects to which the defendant is entitled.”); United States v. Feola, 651 F.Supp. 1068, 1144 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989), cert. denied, 493 U.S. 834,110 S.Ct. 110, 107 L.Ed.2d 72 (1989) (“[T]elephone records are clearly included under this rule as discoverable objects to which defendants are entitled.”); cf. United States v. Nixon, 418 U.S. 683, 700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (Fed.R.Crim.P. 17, which refers to “books, papers, documents or other objects,” includes tapes" }, { "docid": "21040367", "title": "", "text": "material to the preparation of the defendant’s defense; (2) are intended for use by the government as evidence in chief at the trial; or (3) were obtained from or belong to the defendant. An item in the first category need not be disclosed unless the defendant demonstrates that it is material to the preparation of his defense. A general description of the item will not suffice; neither will a conclusory argument that the requested item is material to the defense. See United States v. Carrasquillo-Plaza, 873 F.2d 10, 12-13 (1st Cir.1989); United States v. Cadet, 727 F.2d 1453, 1466 (9th Cir.1984). Rather, the defendant must make a specific request for the item together with an explanation of how it will be “helpful to the defense.” See, e.g., United States v. Marshall, 132 F.3d 63, 67-68 (D.C.Cir.1998) (“helpful” means relevant to preparation of the defense and not necessarily exculpatory); United States v. Olano, 62 F.3d 1180, 1203 (9th Cir.1995). As the Fifth Circuit put it in United States v. Buckley, 586 F.2d 498, 506 (5th Cir.1978) (quoting United States v. Ross, 511 F.2d 757, 762-63 (5th Cir.1975)), the defendant must “show” “more than that the [item] bears some abstract logical relationship to the issues in the case.... There must be some indication that the pretrial disclosure of the [item] would ... enable[ ] the defendant significantly to alter the quantum of proof in his favor.” The discovery afforded by Rule 16(a)(1)(C) is limited by Rules 16(a)(2) and (3). Rule 16(a)(2) exempts from disclosure “reports, memoranda, or other internal government documents made by the attorney for the government or any other government agent investigating or prosecuting the case,” and “statements made by government witnesses or prospective government witnesses.” Rule 16(a)(3) exempts the discovery of statements of persons who have testified before a grand jury. The Jencks Act, of course, mandates that a statement by a prospec- five prosecution witness to an investigative agent or the grand jury must be provided to the defense after the witness has testified on direct examination. In addition to the government’s discovery obligations under Rule 16(a), the" }, { "docid": "15726006", "title": "", "text": "it could be used to counter the Government’s case or bolster a defense.” United States v. Stevens, 985 F.2d 1175, 1180-81 (2d Cir.1993). Although Rule 16 does not specifically enumerate recordings of phone calls as an item within its, scope, such recordings, whether embodied in tapes or CDs or elsewhere, are, at a minimum, “tangible objects” which the defendant may request. See United States v. Terry, 702 F.2d 299, 312-13 (2d Cir.1983) (treating tapes of conversations as tangible objects covered by Rule 16); United States v. Martinez, 844 F.Supp. 975, 982 (S.D.N.Y. 1994) (“[Telephone records are discoverable objects to which the defendant is entitled.”); United States v. Feola, 651 F.Supp. 1068, 1144 (S.D.N.Y.1987), aff'd, 875 F.2d 857 (2d Cir.1989), cert. denied, 493 U.S. 834,110 S.Ct. 110, 107 L.Ed.2d 72 (1989) (“[T]elephone records are clearly included under this rule as discoverable objects to which defendants are entitled.”); cf. United States v. Nixon, 418 U.S. 683, 700, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974) (Fed.R.Crim.P. 17, which refers to “books, papers, documents or other objects,” includes tapes of conversations); United States v. Tucker, 249 F.R.D. 58, 62 (S.D.N.Y.2008) (Rule 17 applies to telephone recordings). Rule 16, however, contains an important limitation. By its terms, it does not “authorize the discovery or inspection of statements made by prospective government witnesses except as provided in 18 U.S.C. § 3500.” Fed.R.Crim.P. 16(a)(2). Section 3500 “is the exclusive vehicle for disclosure of statements made by government witnesses.” United States v. Percevault, 490 F.2d 126, 128-29 (2d Cir.1974) (citation omitted). And unlike Rule 16, which provides for pre-trial disclosure of the materials covered, § 3500 requires dis closure only “after the witness has testified at trial.” Id. at 129. Explaining Congress’s judgment to provide for disclosure of such witness statements only at that point, the Second Circuit has stated, “[t]his unique but limited discovery device [§ 3500] represents a legislative determination that access to a witness’ statements could be useful in impeaching a witness but was not intended to be utilized in preparation for trial.” Id. In particular, the Second Circuit stated, in enacting § 3500, Congress" }, { "docid": "1627479", "title": "", "text": "after the March 9, 1999 order, thus implying that the reports will reveal that the applications for such orders may contain information contradicting the information presented to the judges in the applications for such later orders and extensions. Id. Defendants further assert that the reports may reveal that the agents who executed the orders failed to voluntarily terminate the interceptions upon achieving the objectives of the orders earlier than the stated termination date in the order, thus violating the requirement of § 2518(5). Id., 119. As noted, Fed.R.Crim.P. 16(a)(1)(C) authorizes discovery from the government of documents material to the defense. Excluded from discovery are internal investigative documents “made by the attorney for the government or any other government agent investigating or prosecuting the case.” Fed. R.Crim.P. 16(a)(2). Discovery is material if the information sought is relevant to the case and will lead to the discovery of admissible evidence. See United States v. Stevens, 985 F.2d 1175, 1180 (2d Cir.1993); United States v. Tanner, 279 F.Supp. 457, 469-70 (N.D.Ill.1967). Further, the requested information must have more than an abstract relationship to the issue presented; there must be some indication that the requested discovery will have a significant effect on the defense. United States v. Maniktala, 934 F.2d 25, 28 (2d Cir.1991); United States v. Ross, 511 F.2d 757, 762-63 (5th Cir.1975); United States v. Feola, supra, at 1144. Although Defendants agree the requested progress reports will assist them in establishing violations of § 2518(1), (4)(e), and (5), the court finds the information contained in such reports will not materially aid Defendants’ quest to discover potential defects in the initial applications for the Title III orders, of the execution or extensions of the orders. Any lack of probable cause for the issuance of the orders or a failure to otherwise comply with § 2518(l)(c) must be present itself on the face of the application. See United States v. Wagner, 989 F.2d 69, 74 (2d Cir.1993) (assessing existence of probable cause for wiretaps on basis of informant’s investigative activities as described in affidavit of support of Title III application and not results of" } ]

[ { "docid": "8377345", "title": "", "text": "concerning the forest management (Menominee Tribe of Indians v. United States, 118 Ct.Cl. 290 (1951)). The present suit was begun on April 25, 1967. The principal charge of mismanagement in the period 1951 to 1961 is that the Federal Government, as fiduciary manager of the Menominee forest, obtained too low harvest income because it adhered to an unreasonably low annual harvest limitation; this annual limitation had been first set by the Congress in 1890 and continued thereafter. The contention was that the Interior Department, though it knew or should have discovered that the limitation was deleteriously low in 1951-1961, failed to seek amendment of the statutory harvest limitation from the Congress, which could not be aware (it is said) of the changing conditions necessitating such an amendment unless so informed by government management personnel. The trial judge accepted this argument of breach of fiduciary duty. Defendant presents a number of reasons why the decision below should be completely reversed and the complaint dismissed. We need consider only the defenses of limitations and of lack of jurisdiction to consider actions connected with the Termination Act. Ill Statute of Limitations Because this suit was commenced on April 25, 1967, the six-year statute of limitations applicable to the Court of Claims would ordinarily bar plaintiffs’ claim to the extent it “first accrued” prior to April 25, 1961. 28 U.S.C. § 2501. Termination of federal control and supervision, under the Termination Act, was effective April 30, 1961. 25 U.S.C. § 896; 26 Fed.Reg. 3726. On April 26, 1961, the Secretary of the Interior, pursuant to 25 U.S.C. § 897, transferred the Menominee forest by deed to the plaintiffs (or their representatives). At most, therefore, there were only one to five days in which government action with respect to the management of the forest was within the six-year period for an allowable suit. When did plaintiffs’ claim of forest mismanagement “first accrue”? The trial judge measured plaintiffs’ damages from January 1, 1952; he found that from the data available at that time defendant knew or should have known that the statutory harvest limitation “was the" } ]

[ { "docid": "76693", "title": "", "text": "to the Bank after the Ninth Circuit’s decision in Bianchi III. Thus, he contends, his suit is timely because it was filed in 2004, within six years of the government’s breach. We agree with the Court of Federal Claims, however, and hold that Bian-chi’s claim for the VECP I royalties is time-barred. Section 2501 of Title 28 states that “[ejvery claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” The six-year statute of limitations set forth in § 2501 is a jurisdictional requirement. Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576-77 (Fed.Cir.1988). “A cause of action cognizable in a Tucker Act suit accrues as soon as all events have occurred that are necessary to enable the plaintiff to bring suit, i.e., when ‘all events have occurred to fix the Government’s alleged liability, entitling the claimant to demand payment and sue here for his money.’ ” Martinez v. United States, 333 F.3d 1295, 1303 (Fed.Cir.2003) (quoting Nager Elec. Co. v. United States, 177 Ct.Cl. 234, 368 F.2d 847, 851 (Ct.Cl.1966)). With respect to Bianchi’s claim for the VECP I awards, all events had occurred to fix the government’s alleged liability by 1993. In that year, the ASBCA determined the amount of the VECP I royalties. Bianchi contends that his right to these royalties arises under the settlement agreement executed in 1988. Thus, any entitlement Bianchi had for payment of the VECP I royalties pursuant the 1988 settlement agreement had accrued by 1993. Because Bianchi’s suit was filed in 2004, more than six years after his claim accrued, the Court of Federal Claims properly held that Bianchi’s claim for the VECP I royalties was barred under § 2501. In so holding, we reject Bianchi’s contention that his claim for the amount of the VECP I royalties did not arise until 1999, when the government paid these royalties to the Bank after Bianchi III. In our view, it should not matter if the government paid the Bank the money" }, { "docid": "11052076", "title": "", "text": "action for breach of trust based on the above-noted statutes and regulations fails to state a claim for money damages in this court. Accordingly, it must be dismissed. 5. Statute of Limitations Defendant also argues in its motion to dismiss that this court lacks jurisdiction over plaintiffs claim because it is time barred by the six-year statute of limitations. Absent a specific statute of limitation, a suit against the United States in the Court of Federal Claims is barred unless it is brought within six years of the date upon which the claim first accrued. 28 U.S.C. § 2501 (1988). “A cause of action against the government ‘first accrued’ only when all the events which fix the government’s alleged liability have occurred and the plaintiff was or should have been aware of their existence.” Fort Mojave Indian Tribe, 23 Cl.Ct. at 428 (quoting Hopland Band v. United States, 855 F.2d 1573, 1577 (Fed.Cir.1988)). Defendant asserts that because plaintiff “was or should have been aware” of the deteriorated state of the Fort Apache site since 1979, plaintiffs claim “accrued” beyond the six-year statute of limitations. Plaintiff argues that it was not aware of its claim until 1998. Having concluded that plaintiff has failed to state a claim for relief, the court does hot reach defendant’s alternative basis for dismissal. CONCLUSION For the reasons stated above, the court finds that plaintiff has failed to prove a fiduciary obligation on behalf of the defendant that would give rise to a claim for money damages, and therefore fails to state a claim for which relief may be granted in this court. Accordingly, defendant’s motion to dismiss for failure to state a claim is GRANTED. The case is hereby DISMISSED. . \"The Secretary of the Interior is authorized to establish and maintain the former Fort Apache military post as an Indian boarding school for the purpose of carrying out treaty obligations, to be known as the Theodore Roosevelt Indian School: Provided, That the Fort Apache military post, and land appurtenant thereto, shall remain in the possession and custody of the Secretary of the Interior so" }, { "docid": "19965291", "title": "", "text": "maintains, plaintiff’s action is time barred. Plaintiff counters that the statute of limitations should run from August 28, 1991, the date on which the AFBCMR finally rejected his application for correction of his military record; that is, when he exhausted administrative remedies. Plaintiff also contends that defendant’s motion to dismiss includes an “unequivocal admittance” to the truthfulness of the facts asserted in the complaint; namely, that plaintiff admits the timeliness of the filing of this action. Finally, plaintiff contends that the AFBCMR’s waiver of the untimeliness of his application in the administrative proceeding operates as a waiver of the six year statute of limitations applicable in this court. In other words, plaintiff argues that this court’s statute of limitations is equitably tolled. DISCUSSION In this court, the statute of limitations is a jurisdictional barrier. Soriano v. United States, 352 U.S. 270, 273-74, 77 S.Ct. 269, 272, 1 L.Ed.2d 306 (1957). Whether the merits of a plaintiff’s claim can be addressed depends upon whether suit was filed within six years of the date on which the claim first accrued. 28 U.S.C. § 2501. A cause of action accrues “when all events affecting the alleged liability of the United States have occurred.” Wright v. United States, 19 Cl.Ct. 779, 784 (1990) (citing Kirby v. United States, 201 Ct.Cl. 527, 532 (1973), cert. denied, 417 U.S. 919, 94 S.Ct. 2626, 41 L.Ed.2d 224 (1974)). Plaintiff first challenges defendant’s contention that this matter is time barred by asserting that the statute of limitations did not begin to run until the administrative proceedings were exhausted. Both the United States Court of Appeals for the Federal Circuit and this court have, however, rejected this assertion in prior cases. Hurick v. Lehman, 782 F.2d 984, 987 (Fed.Cir.1986); Wright, 19 Cl.Ct. at 784. In Hurick, the Federal Circuit rejected the assertion that the statute of limitations was tolled for the period during which applications for relief were pending before a corrections board. The court, therefore, reaffirmed the rule that resort to a corrections board is a permissive, rather than mandatory, step that does not suspend the running of" }, { "docid": "17677278", "title": "", "text": "terms included in the statute based on assurances from federal officials that the statute would not adversely affect the Tribe’s claim to its ancestral lands. As ultimately interpreted by the Supreme Court and applied by the Court of Appeals for the Fourth Circuit, however, the statute had the effect of extinguishing the Tribe’s rights to certain ancestral lands. Four years after the Supreme Court issued its decision interpreting the statute and 28 years after the statute’s enactment, the Tribe brought suit against the United States in this court. The government moved to dismiss that suit as barred by the applicable six-year statute of limitations. The Tribe responded that, especially in view of the assurances by federal officials that the statute would not adversely affect the Tribe’s ancestral lands, the Tribe did not know it had been injured until the Supreme Court interpreted the statute and that the suit should be deemed timely because it was brought within six years of that Supreme Court decision. The Catawba court addressed both accrual and equitable tolling of the statute of limitations. The court appears to have categorized the argument that the Tribe did not know it had suffered any injury from enactment of the statute as relevant to the application of the doctrine of equitable tolling rather than accrual. As to accrual, the court explained: “It is hornbook law that a claim does not accrue until all events necessary to fix the liability of the defendant have occurred— when ‘the plaintiff has a legal right to maintain his or her action.’ ” Id. at 1570 (quoting Calvin W. Corman, Limitation of Actions § 6.1, at 374 (1991)); see also Nager Electric Co. v. United States, 177 Ct.Cl. 234, 240, 368 F.2d 847, 851 (1966). The court, explaining that knowledge of injury was not a prerequisite for accrual, stated: While the Supreme Court’s pronouncement in 1986 might be relevant to fixing the time when the Tribe subjectively first knew what the Act meant, it is fundamental jurisprudence that the Act’s objective meaning and effect were fixed when the Act was adopted. Any later judicial" }, { "docid": "10478801", "title": "", "text": "reach [the] amendments.” Four days after the approval, the BIA Navajo Area Director’s royalty adjustment of twenty percent, dating back to June 18,1984, was formally vacated. DISCUSSION The Statute of Limitations Plaintiff filed this case on December 14, 1993, the sixth anniversary of the Secretary’s approval of the lease amendments. The government does not agree that the statute of limitations begins to run with the Secretary’s approval. The government argues that to the extent plaintiffs claim is based on the Secretary’s actions in July, 1985, the claim is time-barred under the six-year statute of limitations. See 28 U.S.C. § 2501 (1999). We reject that position for two independent reasons: (1) the Navajo Nation’s cause of action had not yet accrued in July, 1985; and (2) the Secretary’s conduct remained secret until after the Navajo Nation’s complaint was filed. Accrual of a cause of action occurs “when all events which fix the government’s liability have occurred and the plaintiff was or should have been aware of their existence.” Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1577 (Fed.Cir.1988)(emphasis in original); Kinsey v. United States, 852 F.2d 556, 557 n. * (Fed.Cir.1988); see also, Sankey v. United States, 22 Cl.Ct. 748 (1991)(statute begins to run when underlying facts of claim become known or knowable to plaintiff), aff'd 951 F.2d 1266, 1991 WL 260869 (1991). In our view the events that transpired in July 1985 initiated a course of conduct that was complete only with the challenged approval of December 1987. The government does not contend any claim based on the 1987 approval is barred. See Def. Clarification of Certain Proposed Findings of Fact at 1-2. The Navajo Nation’s claim cannot be barred while events that directly affect the rights asserted have yet to take place. Further, when the Navajo Nation filed its complaint it was unaware, through no fault of its own, of the July 1985 events. The complaint challenged the December 1987 approval. The statute of limitation does not run against a plaintiff who is unaware of a cause of action, whether because the defendant concealed the actions" }, { "docid": "6496166", "title": "", "text": "Brighton’s claims. The Court of Federal Claims has the power to award money damages on contract claims under the Tucker Act. 28 U.S.C. § 1491(a)(1). II. To escape a time bar, a claimant in the Court of Federal Claims must file within six years after the claim has accrued. 28 U.S.C. § 2501 (1988 & Supp. V 1993). A claim accrues “when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action.” Kinsey v. United States, 852 F.2d 556, 557 (Fed.Cir.1988) (quoting Oceanic S.S. Co. v. United States, 165 Ct.Cl. 217, 225, 1964 WL 8621 (1964)). Brighton claims in part that HUD breached the. HAP contract by failing to make rent adjustments on August 22 of the years 1981 to 1984. These claims accrued on the dates the alleged breaches occurred. See Lins v. United States, 688 F.2d 784, 787, 231 Ct.Cl. 579 (1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 995 (1983). Because Brighton filed suit in the Court of Federal Claims in 1991, the claims for 1981 to 1984 are time-barred. Brighton’s repeated administrative challenges to HUD’s policies did not postpone accrual of its claims. To have this postponing effect, Brighton’s protests would need to have arisen under the HAP contract. A claim that “arises under” a contract receives different treatment under the statute of limitations than does a claim that alleges a “pure breach.” A “pure breach” claim accrues when a plaintiff has done all he must do to establish his entitlement to payment and the defendant does not pay. Lins, 688 F.2d at 787. A claim “arising under” a mandatory dispute resolution provision of a contract, however, does not accrue “until the duly-invoked decision of the administrative or arbitral board or tribunal.” Nager Elec. Co. v. United States, 368 F.2d 847, 854, 177 Ct.Cl. 234 (1966); accord Crown Coat Front Co. v. United States, 386 U.S. 503, 520-22, 87 S.Ct. 1177, 1187, 18 L.Ed.2d 256 (1967). Brighton’s claims seek damages for breach of the HAP contract, they do not arise under it. Indeed," }, { "docid": "17940600", "title": "", "text": "the government’s motion. II. The statute of limitations provides that: \"Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. §2501 (1976). The statute is jurisdictional. Soriano v. United States, 352 U.S. 270, 273-74 (1957); Nager Electric Co. v. United States, 177 Ct. Cl. 234, 249, 368 F.2d 847, 857 (1966). A claim first accrues \"when all events have occurred to fix the Government’s alleged liability, entitling the claimant to demand payment and sue here for his money.” Nager, 177 Ct. Cl. at 240, 368 F.2d at 851 (footnote omitted). Therefore, when the plaintiff has done all he must do to establish his entitlement to payment, e.g., perform on his contract, the claim accrues. Id. at 240-41, 368 F.2d at 851-52; International Potato Corp. v. United States, 142 Ct. Cl. 604, 161 F. Supp. 602 (1958). If disputes are subject to mandatory administrative proceedings, then the claim does not accrue until their conclusion. Crown Coat Front Co. v. United States, 386 U.S. 503, 511 (1967); Nager, 177 Ct. Cl. at 242-44, 368 F.2d at 853; Friedman v. United States, 159 Ct. Cl. 1, 8-9, 310 F.2d at 381, 385-86 (1962), cert. denied, 373 U.S. 932 (1963). Pursuit of permissive administrative remedies, however, does not toll the statute of limitations. Soriano, 352 U.S. at 274-75; Clyde v. United States, 80 U.S. (13 Wall.) 38 (1871); Camacho v. United States, 204 Ct. Cl. 248, 259, 494 F.2d 1363, 1369 (1974); Friedman, 159 Ct. Cl. at 11-12, 310 F.2d at 388. III. A. Plaintiffs claim accrued on September 5, 1974, when the bill was presented to the Federal Reserve Bank. A contract claim accrues \"when the contractor could ordinarily demand his money and bring his suit if payment was not made.” Nager, 177 Ct. Cl. at 240-41, 368 F.2d at 852. It is the completion of the contractor’s work and the resulting entitlement to payment, not the failure to pay which creates the claim. In personnel cases, the claim accrues when the employee is" }, { "docid": "6496167", "title": "", "text": "Claims in 1991, the claims for 1981 to 1984 are time-barred. Brighton’s repeated administrative challenges to HUD’s policies did not postpone accrual of its claims. To have this postponing effect, Brighton’s protests would need to have arisen under the HAP contract. A claim that “arises under” a contract receives different treatment under the statute of limitations than does a claim that alleges a “pure breach.” A “pure breach” claim accrues when a plaintiff has done all he must do to establish his entitlement to payment and the defendant does not pay. Lins, 688 F.2d at 787. A claim “arising under” a mandatory dispute resolution provision of a contract, however, does not accrue “until the duly-invoked decision of the administrative or arbitral board or tribunal.” Nager Elec. Co. v. United States, 368 F.2d 847, 854, 177 Ct.Cl. 234 (1966); accord Crown Coat Front Co. v. United States, 386 U.S. 503, 520-22, 87 S.Ct. 1177, 1187, 18 L.Ed.2d 256 (1967). Brighton’s claims seek damages for breach of the HAP contract, they do not arise under it. Indeed, Brighton characterized its claims against HUD in its complaint as “breach of contract.” Further, for a claim to arise under a contract, it must rely upon a clause that authorizes a specific remedy. See United States v. Utah Constr. & Mining Co., 384 U.S. 394, 404 n. 6, 86 S.Ct. 1545, 1552 n. 6, 16 L.Ed.2d 642 (1966). No clause in the HAP contract authorizes any particular form of relief for HUD’s failure to adjust rents. Because Brighton makes “pure breach” claims, its causes of action accrued in the years 1981 through 1984, respectively. Brighton filed its claim in the trial court too late to save these claims. Moreover, this court detects no grounds to toll the statute of limitations. Brighton sought permissive administrative remedies, which do not toll the limitations period. Hurick v. Lehman, 782 F.2d 984, 987 (Fed.Cir.1986). Further, Brighton’s pursuit of administrative remedies did not interfere with its ability to satisfy the statute of limitations. Brighton could have commenced a protective action in the Claims Court when it deduced that HUD would" }, { "docid": "23538921", "title": "", "text": "determining when a cause of action arises or accrues is to establish the time when the plaintiff could have first maintained the action to a successful conclusion.” 51 Am.Jur.2d Limitations of Actions § 107, at 679 (1970) (emphasis added; footnote omitted); see generally id. § 126 (limitations on contract actions). Second, the statute of limitations in 28 U.S.C. § 2501 provides in pertinent part: “Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” We have not been able to find a single case construing “first accrues” in § 2501 in which the court has held that the cause of action first accrues when the plaintiff acquires the claim rather than when the defendant Government’s liability has been fixed. E. g., Castro v. United States, 500 F.2d 436, 205 Ct.Cl. 534 (1974) (statute of limitations starts to run when it was finally possible to compute the extent and duration of taking, even though taking originated more than twenty years before); Nager Elec. Co. v. United States, 368 F.2d 847, 177 Ct.Cl. 234 (1966) (cause of action accrues when all events have occurred which fix the liability of defendant); Griffin v. United States, 77 F.Supp. 197, 110 Ct.Cl. 330 (1948) (statute of limitations runs from when the claim can be definitely ascertained), rev’d on other grounds sub nom. United States v. Jones, 336 U.S. 641, 69 S.Ct. 787, 93 L.Ed. 938 (1949); see cases cited in 28 U.S.C.A. § 2501 ns. 8, 9. Thus the interpretation of “first accrues” for the Court of Claims’ statute of limitations, § 2501, is the same as that of state courts’ interpretations of state statutes. Third, none of the cases in 28 U.S.C.A. § 2401(a) ns. 70-76 supports the interpretation of “accrues” which the Government encourages this court to make. E. g., O’Connell v. United States, 37 F.Supp. 832 (E.D.Ill.1941) (action to recover personal property of decedent accrued at time of death of decedent, not when administrator was appointed). Thus the General Discussion in the Senate Report also" }, { "docid": "7361708", "title": "", "text": "Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501 (2000). This statute is not subject to waiver or estoppel because it constitutes a limitation on Congress’s waiver of sovereign immunity. Hopland Band of Pomo Indians v. United States, 855 F.2d 1573, 1576-77 (Fed.Cir. 1988); Cavin v. United States, 19 Cl.Ct. 190, 194-96 (1989). Because it limits the waiver of sovereign immunity, the statute limits the jurisdiction of this Court. Hopland Band, 855 F.2d at 1576-77. Therefore, it must be construed strictly, and exceptions to the limitation “are not to be implied.” Id. (quoting Soriano v. United States, 352 U.S. 270, 276, 77 S.Ct. 269, 1 L.Ed.2d 306 (1957)); Tabbee v. United States, 30 Fed.Cl. 1, 4 (1993) (citations omitted). In this case, the Court must determine when the claim first accrued in order to decide whether it is barred or not. For the purposes of the statute, a claim “first accrues” when the events forming the basis of the alleged breach have taken place. Nager Electric Co. v. United States, 368 F.2d 847, 851 (Ct.Cl.1966). The plaintiff is not required to know all of the facts, or of the cause of action, before the statute begins to run. Fallini v. United States, 56 F.3d 1378, 1380 (Fed.Cir.1995); Mitchell v. United States, 10 Cl.Ct. 63, 68 (1986), rev’d in part on other grounds on reconsideration 10 Cl.Ct. 787 (1986). Further, “ ‘[wjhatever is notice enough to excite attention and put the party on his guard and call for inquiry is [also] notice of everything to which such inquiry might have led.’ ” Id. (quoting Wood v. Carpenter, 101 U.S. (11 Otto) 135, 141, 25 L.Ed. 807 (1879)) (citation omitted) (alterations in original). Once the operative facts have transpired, there could be a tolling of the statute if those facts were inherently unknowable or there was an attempt by the Government to conceal the operative facts. Menominee Tribe v. United States, 726 F.2d 718, 720-22 (Fed.Cir.1988). The parties do not dispute that none of the logging or" }, { "docid": "20473842", "title": "", "text": "available for breach of a contract and the similarities between the Agreement in this ease and the agreement in Holmes, we find the Agreement can be fairly interpreted as contemplating monetary damages as an available remedy. We, therefore, would have jurisdiction over plaintiffs breach of contract claim if not for a different defect discussed below. II. Plaintiffs claim is barred by the statute of limitations Filing a claim within the applicable statute of limitations is a jurisdictional “condition of the waiver of sovereign immunity” under the Tucker Act. Martinez v. United States, 333 F.3d 1295, 1316 (Fed.Cir.2003). “Every claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. § 2501 (2006). Under the Tucker Act, a claim accrues “as soon as all events have occurred that are necessary to enable the plaintiff to bring suit, i.e., when ‘all events have occurred to fix the Government’s alleged liability, entitling the claimant to demand payment and sue here for his money.’ ” Martinez, 333 F.3d at 1303 (quoting Nager Elec. Co. v. United States, 368 F.2d 847, 851 (Ct.Cl.1966)). Defendant asserts that, even accepting plaintiffs allegations of breach of the Agreement, plaintiffs claim accrued more than six years before he commenced this suit. Defendant argues that plaintiff received notice that the Amarillo Post Office would not keep his application on file and thus would not consider the application after August 1, 1986. Plaintiff responds that the accrual of his claim for breach of contract was suspended because he did not know and should not have known that the claim existed, and thus the accrual suspension rule is applicable. Pl.’s Resp. 10 (citing Young v. United States, 529 F.3d 1380 (Fed.Cir.2008)). The Agreement was executed on June 18, 1985. It provides that: upon completion of military duty ... ending July 22, 1985, [plaintiff] will submit a request for re-instatement into the Amarillo, Texas Post Office as a ... Mail Handler-Upon the availability for Mailhan-dler position vacancies for the Amarillo, Texas Post Office," }, { "docid": "11595622", "title": "", "text": "services. This meaning is reinforced, given that the $53 per hour figure is an average cost, as discussed earlier. Since we hold that the overtime usage of Computer Room One is covered by the lease, it follows that the rate to be applied is $53 per hour. Ill With respect to whether appellant may recover for the entirety of its claim, we further conclude that no part is barred by the statute of limitations as having “accrued” more than six years before this suit was filed. As a general rule, a claim accrues when all events necessary to fix the Government’s liability have occurred, e.g., the services have been rendered, thus entitling the contractor to demand payment. Nager Electric Co. v. United States, 368 F.2d 847, 851, 177 Ct.Cl. 234 (1966). However, “a particular agreement ... can establish some other pre-condition for liability or an unusual time for demanding payment.” Id. at 852. The lessor correctly contends that the reporting and billing practices for overtime use adopted with S.A. 10 are controlling and that the Government’s liability was not fixed until the overtime use had first been reported to the lessor. The reporting and billing practice adopted here was precisely that followed in Manufacturer’s Aircraft Association v. United States, 77 Ct.Cl. 481, 17 USPQ 439, cert. denied, 291 U.S. 667, 54 S.Ct. 442, 78 L.Ed. 1057 (1934). There it was held that the timeliness of plaintiff’s .suit for the recovery of unpaid royalties was to be measured from the date that the Government first formally reported its use of plaintiff’s patents and not from the date that the use had occurred or from the date that the report was otherwise due. The Government argues that the reporting was irrelevant because the claim must be taken as having accrued when the services were performed unless the Government’s use of the overtime services was “inherently unknowable” to the lessor citing Japanese War Notes Claimants Association v. United States, 373 F.2d 356, 178 Ct.Cl. 630, cert. denied, 389 U.S. 971, 88 S.Ct. 466, 19 L.Ed.2d 461 (1967). The Government fails to recognize that" }, { "docid": "20394764", "title": "", "text": "Haz-Mat Response, Inc., 259 Kan. at 177, 910 P.2d at 847) (Michael Leathers became aware that he may have received benefit in December of 2006). Based on an accrual date in January of 2006, the Court found that the statute of limitations did not bar the unjust enrichment claim by Ronald Leathers. See id. at *18. Leathers did not hold that the discovery rule applied to unjust enrichment claims. See id. Rather, based on longstanding Kansas case law, it held that a cause of action does not accrue until all elements of the claim are present. See id. Without any authority to support applying the discovery rule to plaintiffs unjust enrichment claim, the Court declines to do so — particularly given the reluctance of Kansas courts to soften statutes of limitations by interpreting them to include provisions not expressly contained in the statutes. See McCoy, 188 Kan. at 331-32, 362 P.2d at 847; Atchison Grain Co., 68 Kan. 585, 75 P. at 1052-53. The question remains, however, when did plaintiffs unjust enrichment claim accrue? Plaintiff does not contend that defendant first appreciated or knew that it was underpaying royalties within the last five years. Instead plaintiff contends that all along, defendant knew it was underpaying royalties. The five-year statute of limitations therefore cuts off any unjust enrichment claim that accrued before September 10, 2003. IT IS THEREFORE ORDERED that Defendant’s Motion For Partial Summary Judgment Regarding the Applicable Statute Of Limitations (Doc. # 79) filed March 1, 2012 be and hereby is SUSTAINED. Plaintiffs claims are limited to royalty payments defendant made to plaintiff after September 10, 2003, i.e. five years before plaintiff filed suit. . The class excludes (1) the Mineral Management Service (Indian tribes and the United States); (2) defendant, its affiliates, predecessors, employees, officers and directors; and (3) any NYSE or NASDAQ listed company (and its subsidiaries) engaged in oil and gas exploration, gathering, processing or marketing. . A federal court exercising diversity jurisdiction must apply the substantive law of the state in which it sits, including the statutes of limitations. See Miller v. Armstrong World Indus.," }, { "docid": "15598365", "title": "", "text": "To prove that her claim is not time-barred, plaintiff must show that her claim first accrued within six years of the filing of the complaint. LaMear v. United States, 9 Cl.Ct. 562, 569 (1986), aff'd, 809 F.2d 789 (Fed.Cir.1986). Under this threshold analysis, a claim first accrues when “all the events have occurred which fix the alleged liability of the defendant and entitle the plaintiff to institute an action.” Hopland 855 F.2d at 1577. In other words, a claim has accrued when the last event transpires that gives plaintiff a cause of action. For breach of contract actions, the claim generally accrues at the time of the breach. Brighton Village Associates v. United States, 52 F.3d 1056, 1060 (Fed.Cir.1995). As stated in the prior section, for this court to determine the date of the breach, a factual issue, it will consider all the evidence presented in order to satisfy itself regarding the appropriateness of exer- (rising jurisdiction. RHI Holdings, Inc., 142 F.3d at 1461-62. Defendant launches two arguments supporting its theory that plaintiffs claim violates the statute of limitations. First, defendant argues that because “plaintiff fails to plead the dates of the alleged occurrences, the Court may infer such failure as an admission that the occurrences took place outside of the six-year statute of limitations.... [therefore] this Court should dismiss Ms. Martinez’s amended complaint, with prejudice, due to the inferred expiration of the applicable statute of limitations caused by Ms. Martinez’s failure to plead the dates of the events underlying her claims.” Deft’s Mot. to Dismiss, at 5. We can dispose of this first argument quite easily. When the court looks at the totality of plaintiffs filings, pursuant to the above-ventilated standards advising us to look to all the available evidence, it is apparent that the earliest date of HUD’s alleged breach was April 17,1989, the date HUD first responded to and refused plaintiffs January 1989 request for partial disbursement of the CAA funds. Consequently, April 17, 1989 is the earliest date that the six-year clock on plaintiffs claim could have begun to run. Next, a filing date, or the" }, { "docid": "21197651", "title": "", "text": "applies.” Kaufman v. Cohen, 307 A.D.2d 113, 760 N.Y.S.2d 157, 164 (App. Div. 1st Dep’t 2003) (citations and quotation marks omitted); see also Independent Order, 157 F.3d at 942; N.Y. C.P.L.R. § 214(4) (2007); cf. Cooper v. Parsky, 140 F.3d 433, 440-41 (2d Cir.1998) (“The Second Circuit has recognized that a six-year statute of limitations only controls claims for breach of fiduciary duties seeking equitable relief.”). The time within which an action “must be commenced ... shall be computed from the time the cause of action accrued to the time the claim is interposed.” N.Y. C.P.L.R. § 203(a) (2007). A claim for breach of fiduciary duty accrues, and the statute begins to run, upon the date of the alleged breach. See Bastys v. Rothschild, No. 97 Civ. 5154, 2000 WL 1810107, at *34 (S.D.N.Y. Nov. 21, 2000) (“With respect to accrual, the rule in New York is that if a breach of fiduciary duty claim is not based upon fraud, the statute of limitation begins to run upon the breach, and not when the plaintiff discovers the breach.”) (citations omitted). In the instant case, Plaintiffs seek monetary damages, therefore, the applicable statute of limitations is three years. Defendants contend that the statute of limitations started to run in June and July of 2000 when Plaintiffs purchased the Investments. Since this action was commenced in February 2006, more than five years after such purchases, Defendants assert that Plaintiffs’ claim is time-barred. The Court agrees with Plaintiffs that the statute of limitations may be tolled while a relationship of trust and confidence exists between the parties. See Golden Pac. Bancorp v. FDIC, 273 F.3d 509, 518 (2d Cir.2001). The “reason for such a tolling rule is that the beneficiary should be entitled to rely upon a fiduciary’s skill without the necessity of interrupting a continuous relationship of trust and confidence by instituting suit.” Id. at 519 (citations omitted). Because Hersh remained as the agent of record on the Investments until 2005, Plaintiffs claim the statute of limitations was tolled until that time based on a continuing relationship of trust and confidence. The" }, { "docid": "22793197", "title": "", "text": "years subsequent to the date of his final discharge when his entitlement to retirement depends upon invalidating the discharge ? In an affirmative answer to the foregoing question, plaintiff attempts to draw a distinction between the active duty claim and the retirement claim by arguing that if the discharge is found to be illegal as a matter of law, then he should receive constructive credit for the years still to be served under his last 6-year enlistment contract up to July 9, 1967, at which point he could have retired with more than 20 years of active service to his credit. Thus, since July 9,1967, was the first time he would have been eligible for retirement, it is claimed to be also the first time he could have sued for retirement pay and, therefore, is the date upon which his cause of action for retired pay first accrued for statute of limitations purposes. If all of the plaintiff’s premises are accepted, it is clear that the petition filed in October of 1971 was timely with respect to the claim for retirement pay. But, note that plaintiff’s pyramid of presumptions is based upon voiding the 1963 discharge over 8 years after receiving it. In an effort to measure the merits of the plaintiff’s thesis, attention should first be turned to the general rule found in Oceanic S.S. Co. v. United States, 165 Ct. Cl. 217, 225 (1964), for determining precisely when a cause of action accrues for statute of limitation purposes. There the court held: A claim against the United States first accrues on the date when all the events have occurred which fix the liability of the Government and entitle the claimant to institute an action. * * * [cites omitted]. At 218 the court said, “* * * for this court no cause of action accrues before the claimant can bring a suit for money judgment.” See also, Nager Elec. Co. v. United States, 177 Ct. Cl. 234, 252, 368 F. 2d 847, 859 (1966). These were contract cases. The same standard applies where the Government’s obligation arises as" }, { "docid": "17940599", "title": "", "text": "without any notice of defect in title or that you paid value for the bill.” Both before and after the plaintiff presented his certificate of ownership, the Treasury indicated that a valid court decree establishing the plaintiffs ownership would be accepted in lieu of a proper certificate of ownership. In February 1981, the plaintiff sued the Treasury Department in the United States District Court for the District of Columbia for a declaratory judgment that he owned the bill. The Treasury impleaded the indemnitors. In September, the district court transferred the case to this court under 28 U.S.C. § 1406(c) (1976), because the plaintiff was seeking money damages in an amount beyond the court’s jurisdiction. Id. § 1346(a)(2) (Supp. IV 1980). In his petition in this court, the plaintiff seeks the $1,000,000 face value of the bill, interest from September 5, 1974, and consequential damages of up to $10,000,000. The government has moved for summary judgment. The plaintiff has cross-moved for partial judgment on the pleadings or, alternatively, for partial summary judgment for $1,000,000. We grant the government’s motion. II. The statute of limitations provides that: \"Every claim of which the Court of Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” 28 U.S.C. §2501 (1976). The statute is jurisdictional. Soriano v. United States, 352 U.S. 270, 273-74 (1957); Nager Electric Co. v. United States, 177 Ct. Cl. 234, 249, 368 F.2d 847, 857 (1966). A claim first accrues \"when all events have occurred to fix the Government’s alleged liability, entitling the claimant to demand payment and sue here for his money.” Nager, 177 Ct. Cl. at 240, 368 F.2d at 851 (footnote omitted). Therefore, when the plaintiff has done all he must do to establish his entitlement to payment, e.g., perform on his contract, the claim accrues. Id. at 240-41, 368 F.2d at 851-52; International Potato Corp. v. United States, 142 Ct. Cl. 604, 161 F. Supp. 602 (1958). If disputes are subject to mandatory administrative proceedings, then the claim does not accrue until their conclusion. Crown Coat Front" }, { "docid": "10327621", "title": "", "text": "statute of limitations set forth in 28 U.S.C. § 2501. Def.’s Mot. at 12-13. Section 2501 states, in pertinent part that: “[e]very claim of which the United States Court of Federal Claims has jurisdiction shall be barred unless the petition thereon is filed within six years after such claim first accrues.” Thus, the critical date is the date of “accrual.” Mr. Mudge contends that he was required to exhaust his administrative remedy before seeking a judicial remedy, making GAO’s May 8, 1995 decision denying his appeal the date of accrual, which would be within six years of his filing of the complaint on April 24, 2000. Hr’g Tr. at 44-45. He also argues that the statute of limitations should be tolled during the time that he was pursuing an administrative remedy. Id. at 25, 44-47. The government responds that Mr. Mudge’s appeal of FAA’s decision to GAO was a permissive appeal, and such appeals do not toll the statute of limitations. Def.’s Reply at 11-12. The government is correct that “a plaintiffs invocation of a permissive administrative remedy does not prevent the accrual of the plaintiffs cause of action, nor does it toll the statute of limitations pending the exhaustion of that administrative remedy.” Martinez v. United States, 333 F.3d 1295, 1304 (Fed.Cir.2003) (en banc). This case, however, does not fit comfortably within the usual paradigm for computing the date on which a claim accrues. “‘First accrual’ has usually been put, in broad formulation, as the time when all events have occurred to fix the Government’s alleged liability, entitling the claimant to demand payment and sue here for his money.” Nager Elec. Co. v. United States, 177 Ct.Cl. 234, 368 F.2d 847, 851 (1966). The term “accrual” is not limited to the culmination of the factual events necessary to prove a cause of action but includes the existence of the legal cause of action itself. Thus, more specifically to the circumstances of this case, “ ‘[t]he term ‘accrue’ in the context of a cause of action means to arrive, to commence, to come into existence, or to become a present" }, { "docid": "17677279", "title": "", "text": "statute of limitations. The court appears to have categorized the argument that the Tribe did not know it had suffered any injury from enactment of the statute as relevant to the application of the doctrine of equitable tolling rather than accrual. As to accrual, the court explained: “It is hornbook law that a claim does not accrue until all events necessary to fix the liability of the defendant have occurred— when ‘the plaintiff has a legal right to maintain his or her action.’ ” Id. at 1570 (quoting Calvin W. Corman, Limitation of Actions § 6.1, at 374 (1991)); see also Nager Electric Co. v. United States, 177 Ct.Cl. 234, 240, 368 F.2d 847, 851 (1966). The court, explaining that knowledge of injury was not a prerequisite for accrual, stated: While the Supreme Court’s pronouncement in 1986 might be relevant to fixing the time when the Tribe subjectively first knew what the Act meant, it is fundamental jurisprudence that the Act’s objective meaning and effect were fixed when the Act was adopted. Any later judicial pronouncements simply explain, but do not create, the operative effect. 982 F.2d at 1570 (emphasis in original). The court went on to take the position, however, that knowledge of injury was relevant to the issue of whether, after accrual, the statute of limitations should he equitably tolled. The court stated: As noted, a traditional ground for equitable tolling of a statute of limitations is based on the avoidance of penalizing a plaintiff simply because under the circumstances plaintiff did not and could not have known of the facts upon which the claim is based. Id. at 1572 (emphasis in original) (citing Cor-man, Limitation of Actions § 11.1). VI. Turning to the issue of accrual of the statute of limitations in Section 16(a)(2), the terms of the Vaccine Act demonstrate that Congress intended the limitations period to commence to run prior to the time a petitioner has actual knowledge that the vaccine recipient suffered from an injury that could result in a viable cause of action under the Vaccine Act. First, a particular symptom or manifestation," }, { "docid": "15598364", "title": "", "text": "similarly address the propriety of exercising its jurisdiction as to plaintiffs equity and breach of contract claims under each of the three counts, seriatim. A. STATUTE OF LIMITATIONS The government initially seeks to dismiss plaintiffs claims on the ground of lack of subject matter jurisdiction, pursuant to Rule 12(b)(1), because her complaint violates the statute of limitations. Suits against the United States are subject to a six-year limitation. 28 U.S.C. § 2501. This six-year time bar on actions against the United States is “a jurisdictional requirement attached by Congress as a condition on the government’s waiver of sovereign immunity____” Hopland Band of Pomo Indians v. United States. 855 F.2d 1573, 1576-77 (Fed.Cir.1988). Because the statute of limitations affects this court’s subject matter jurisdiction — rather than being an affirmative defense — the requirement is strictly construed and under no circumstances may it be waived by the court. Laughlin v. United States. 22 Cl.Ct. 85, 99 (1990), aff'd, 975 F.2d 869, 1992 WL 164266 (Fed.Cir.1992); Catellus Dev. Corp. v. United States. 31 Fed.Cl. 399, 404 (1994). To prove that her claim is not time-barred, plaintiff must show that her claim first accrued within six years of the filing of the complaint. LaMear v. United States, 9 Cl.Ct. 562, 569 (1986), aff'd, 809 F.2d 789 (Fed.Cir.1986). Under this threshold analysis, a claim first accrues when “all the events have occurred which fix the alleged liability of the defendant and entitle the plaintiff to institute an action.” Hopland 855 F.2d at 1577. In other words, a claim has accrued when the last event transpires that gives plaintiff a cause of action. For breach of contract actions, the claim generally accrues at the time of the breach. Brighton Village Associates v. United States, 52 F.3d 1056, 1060 (Fed.Cir.1995). As stated in the prior section, for this court to determine the date of the breach, a factual issue, it will consider all the evidence presented in order to satisfy itself regarding the appropriateness of exer- (rising jurisdiction. RHI Holdings, Inc., 142 F.3d at 1461-62. Defendant launches two arguments supporting its theory that plaintiffs claim violates" } ]

[ { "docid": "11683658", "title": "", "text": "is clear, there was no fatal “confusion” in jury instructions as the majority asserts. The majority asks “[d]id it matter whether the payments were induced or not induced?” The short answer here is “no.” Since no inducement was required, any “confusion” in the jury’s minds could only have been whether the government had a higher burden of proof than it really did; that could only have benefited Aguon. A jury trial is not a game of technicalities where each foot fault may lose the point. The claimed error would “logically [be] harmless to defendant beyond any reasonable doubt.” United States v. Rea, 532 F.2d 147, 149 (9th Cir.1976). See also Fed.R.Crim.P. 52(a). Equally without merit is the further contention that the lack of an explicit instruction on mens rea compounded some plain error in the jury instructions. The majority’s real argument is that an essential element of the offense is a demand, without which there is no criminal intent. Although the trial court did not specify any particular requirement of criminal intent in its instructions, that interest was nevertheless clearly implicit in the advice to the jury. Aguon was charged with having “knowingly and wilfully” committed extortion under color of official right. The court did give sufficient instructions on the meaning of “knowingly.” The court instructed on the meaning of these terms. The majority itself agrees that the terms “knowingly” and “wilfully” adequately convey the sense of mens rea in a charge of conspiracy. What those terms do not tell the triers of fact is that there must be some inducement. Nor need they do so. The majority reversed the conviction of conspiracy in count 3 because it held that mens rea, meaning inducement, had to be proved if the receipt of political contributions is charged as extortion. In defining “under color of official right,” the court instructed that the “wrongful use of otherwise valid official power converts dutiful action into extortion * * and that extortion under color of official right was “the wrongful taking by a public officer of money or property not due him or his office.”" } ]

[ { "docid": "3313699", "title": "", "text": "for abusing his position as a police juror to facilitate his perjury, under section 3B1.3. The presen-tence report recommended that neither a fine, nor the costs of incarceration, be imposed under section 5E1.2, because the imposition of such a financial burden would cause his family undue hardship. Without objection, the trial judge adopted the recommendations of the pre-sentence report concerning the adjustments to the base sentence level. The trial judge rejected the report’s recommendation as to the imposition of the costs of incarceration; instead, he ordered Pattan to pay $1,220 per month to cover the costs of his incarceration. Pattan appeals arguing that: (1) the Hobbs Act portion of the jury charge constituted plain error; (2) the trial judge improperly interfered with Pattan’s Sixth Amendment right to counsel; and (3) the trial judge committed plain error in sentencing Pattan. II Hobbs Act Instructions Pattan argues, in his first point, that the instructions given by the district court permitted the jury to convict Pattan for passive acceptance of a bribe. Pattan urges us to adopt the reasoning of the Ninth Circuit in United States v. Aguon, and to hold that a public official cannot be convicted for passive acceptance of a bribe under the Hobbs Act. Pattan urges us to hold that the government must establish that the public official took some action that “induced” the payment. In its charge, the trial court instructed the jury that the government must establish three elements beyond a reasonable doubt in order to convict Pattan under the Hobbs Act: First: That the defendant induced the person described in the indictment to part with money or property; Second: That the defendant did so knowingly and willfully by means of “extortion,” as I will define it; and Third: That the extortionate transaction delayed, interrupted or adversely affected interstate commerce. The trial court went on to define more specifically the terms “extortion” and “under color of official right”. “Extortion” means the obtaining of property from another, with his consent, induced under color of official right. The mere receiving of a gift does not constitute extortion. Extortion “under" }, { "docid": "3313700", "title": "", "text": "reasoning of the Ninth Circuit in United States v. Aguon, and to hold that a public official cannot be convicted for passive acceptance of a bribe under the Hobbs Act. Pattan urges us to hold that the government must establish that the public official took some action that “induced” the payment. In its charge, the trial court instructed the jury that the government must establish three elements beyond a reasonable doubt in order to convict Pattan under the Hobbs Act: First: That the defendant induced the person described in the indictment to part with money or property; Second: That the defendant did so knowingly and willfully by means of “extortion,” as I will define it; and Third: That the extortionate transaction delayed, interrupted or adversely affected interstate commerce. The trial court went on to define more specifically the terms “extortion” and “under color of official right”. “Extortion” means the obtaining of property from another, with his consent, induced under color of official right. The mere receiving of a gift does not constitute extortion. Extortion “under color of official right” is the wrongful taking by a public officer of money or property not due to him or his office, whether or not the taking was accomplished by force, threats, or use of fear. In other words, the wrongful use of otherwise valid official power may convert dutiful action into extortion. It is the nature of the office itself which provides the necessary inducement taking the place of fear, duress, or threat when a defendant knowingly takes ad vantage of his office in relation to the payor. While Pattan originally objected to the jury charge on this issue, arguing for two alternate wordings, he withdrew his objection when the trial judge added to the instruction the phrase “[t]he mere receiving of a gift does not constitute extortion.” Because Pattan did not object to the charge as given, we review the charge for plain error. In the Fifth Circuit, we reverse a conviction, under the plain error standard, “only if the error is so obvious that our failure to notice it would seriously" }, { "docid": "6995920", "title": "", "text": "McCormick was decided after the jury verdict and thus was not available to the district judge when he instructed the jury, we must apply the McCormick standards on appeal. “[A] new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases pending on direct appeal.” United States v. Hilling, 891 F.2d 205, 207 (9th Cir.1988) (citing Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 716, 93 L.Ed.2d 649, 661 (1987)). 1. The Jury Instructions The Hobbs Act provides, in relevant part, that a person is guilty of a crime if he or she “in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by ... extortion or attempts or conspires so to do_” 18 U.S.C. § 1951(a) (1988). The term “extortion” is defined as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” Id. § 1951(b)(2). In United States v. Aguon (Aguon II), 851 F.2d 1158 (9th Cir.1988) (en banc), we held that in order to obtain a conviction under the Hobbs Act for extortion “under color of official right,” the prosecution must prove the defendant in duced the improper payment. Aguon II, 851 F.2d at 1160, 1166, 1172. The Supreme Court recently enunciated an additional requirement for a Hobbs Act conviction of extortion “under color of official right” in McCormick v. United States. In that case, the defendant contended that the alleged extortionate payments were received as legitimate election campaign contributions. The Supreme Court held that, in order to establish the Hobbs Act violation, the prosecution had to prove that the payments were “made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” McCormick, 111 S.Ct. at 1816. In other words, the prosecution had to prove an explicit “quid pro quo.” Id. In McCormick, the Court reversed a Hobbs Act conviction of a state legislator for extortion “under color of official right.” The" }, { "docid": "23554458", "title": "", "text": "objections were raised to the extortion instructions, the record provided to us fails to reflect an objection on this ground. We therefore review for plain error. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). “A plain error is a highly prejudicial error affecting substantial rights.” Id. (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). “The availability of a better instruction is not a ground for reversal,” United States v. Ward, 914 F.2d 1340, 1344 (9th Cir.1990), and in determining the adequacy of jury instructions, we examine them in their entirety. United States v. Feldman, 788 F.2d 544, 555 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). We require courts to instruct on the mens rea required by the Hobbs Act. United States v. Aguon, 851 F.2d 1158, 1168 (9th Cir.1988) (en banc) (Aguon II) (“[Cjriminal intent must be submitted to the jury in a case charging extortion under the Hobbs Act.... The court’s failure to give an instruction on a vital element of the crime was plain error.”) (adopting language from United States v. Aguon, 813 F.2d 1413, 1419 (9th Cir.1987) (Aguon I)). In the case of extortion by inducing payment through fear of economic loss, however, we have not read other elements into the Act. Dischner does not fault the court’s instructions on criminal intent and, read as a whole, we believe they necessarily required a finding that Dischner knew he had no right to the payments induced. For this reason we need not decide whether the government must prove that the defendant knew he had no entitlement. The district court instructed that the jury must find beyond a reasonable doubt that (1) the defendant induced or attempted to induce the person described in the indictment to part with money or property; (2) the defendant did so knowingly and willfully by means of “extortion,” as defined in the statute and in other instructions; and (3) the extortionate transaction delayed, interrupted, or adversely affected interstate commerce. The" }, { "docid": "22802995", "title": "", "text": "Hobbs Act regardless of whether the payment is made in the form of a campaign contribution.” App. 16-17. In affirming petitioner’s conviction, the Court of Appeals noted that the instruction did not require the jury to find that petitioner had demanded or requested the money, or that he had conditioned the performance of any official act upon its receipt. 910 F. 2d 790, 796 (CA11 1990). The Court of Appeals held, however, that “passive acceptance of a benefit by a public official is sufficient to form the basis of a Hobbs Act violation if the official knows that he is being offered the payment in exchange for a specific requested exercise of his official power. The official need not take any specific action to induce the offering of the benefit.” Ibid. (emphasis in original). This statement of the law by the Court of Appeals for the Eleventh Circuit is consistent with holdings in eight other Circuits. Two Circuits, however, have held that an affirmative act of inducement by the public official is required to support a conviction of extortion under color of official right. United States v. O’Grady, 742 F. 2d 682, 687 (CA2 1984) (en banc) (“Although receipt of benefits by a public official is a necessary element of the crime, there must also be proof that the public official did something, under color of his public office, to cause the giving of benefits”); United States v. Aguon, 851 F. 2d 1158, 1166 (CA9 1988) (en banc) (“We find ourselves in accord with the Second Circuit’s conclusion that inducement is an element required for conviction under the Hobbs Act”). Because the majority view is consistent with the common-law definition of extortion, which we believe Congress intended to adopt, we endorse that position. II It is a familiar “maxim that a statutory term is generally presumed to have its common-law meaning.” Taylor v. United States, 495 U. S. 575, 592 (1990). As we have explained: “[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the" }, { "docid": "9799239", "title": "", "text": "86 L.Ed.2d 723 (1985), overruled by United States v. Aguon, 851 F.2d 1158 (9th Cir.1988) (en banc). In 1988, however, we held in an en banc decision that inducement is an essential element of extortion. See United States v. Aguon (Aguon II), 851 F.2d 1158, 1166 (9th Cir.1988) (en banc). We noted that this was contrary to our prior panel decision in McClelland and therefore overruled that decision. Id. at 1160. Based on Aguon II, McClelland petitioned the district court to overturn its decision in his case. The district court found that the proceedings in McClelland’s extortion trial did not constitute fundamental error. 732 F.Supp. 1534. Thus, it did not vacate the conviction. We now hold that our decision in Aguon II, finding that inducement is an essential element of extortion, is fully retroactive and failure to properly instruct the jury on this required element constitutes fundamental error. Accordingly, we reverse the district court’s judgment in this case and remand the case to that court with direction to issue the writ of error coram nobis. DISCUSSION Initially, we are concerned with the retroactivity of our substantive decision in Aguon II concerning the reach of a federal statute. In order to resolve this question, we look to the reasoning of this circuit, and others, under the line of cases following the Supreme Court’s decision in McNally v. United States, 483 U.S. 350, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), in which the Court held that schemes to defraud citizens of their intangible right to good government were not punishable under the mail fraud statute, 18 U.S.C. § 1341. Convictions in this circuit and others had frequently been upheld under that theory. In United States v. Mitchell, 867 F.2d 1232 (9th Cir.1989) (per curiam), we held that McNally was fully retroactive, and thereby reversed the district court’s denial of the defendant’s petition for collateral relief pursuant to 28 U.S.C. § 2255. In so doing, we expressly adopted the reasoning of the Second and Tenth Circuits on this issue of retroactivity. Mitchell, 867 F.2d at 1233 (citing United States v. Shelton, 848 F.2d" }, { "docid": "6995927", "title": "", "text": "surrounding the case. The trial court in this case provided the jury with instructions that accurately comported with the existing law at the time as set forth by our decision in Aguon II. Under recent Supreme Court standards as set forth under McCormick, however, the instructions given by the court were deficient. In McCormick, the Court disapproved of instructions where, taken as a whole, the jury was told that it could find McCormick guilty of extortion if any of the payments, even though a campaign contribution, was made by the doctors with the expectation that McCormick’s official action would be influenced for their benefit and if McCormick knew that the payment was made with that expectation. 111 S.Ct. at 1817. Thus, the jury instruction would have allowed the jury to convict based on a legislator’s receipt of payments where proof of an explicit promise made by the legislator that his official actions would be influenced was not specifically required. See id. Similarly here, the court instructed the jury that “[t]he Government is not required to prove that the defendant demanded or directly solicited the payment made or that he offered anything specific in return for it.” Although the instruction adequately took into account existing circuit law at the time relating to the required element of inducement under Aguon II, it removed from the jury McCormick’s requirement that they find a “quid pro quo, ” defined as “an explicit promise or undertaking by the official to perform or not to perform an official act.” Id. at 1816. In finding the court’s instructions inadequate in this case, we note that McCormick does not upset the Ninth Circuit requirement of Aguon II regarding the necessity of proving inducement as an element of the crime. As noted, the Court in McCormick expressly declined to resolve a split in the circuits over whether inducement is a required element of a Hobbs Act offense. See n. 1, supra. Instead, the Court set forth an additional requirement of a “quid pro quo ” as an element necessary to prove extortion under color of official right under the" }, { "docid": "16687526", "title": "", "text": "O’SCANNLAIN, Circuit Judge: A three-judge panel of this court reversed Aguon’s convictions for extortion and conspiracy in violation of the Hobbs Act, 18 U.S.C. § 1951 and her convictions for making false statements before a grand jury and conspiracy to obstruct justice. United States v. Aguon, 813 F.2d 1413 (9th Cir.1987) {Aguon I). At the suggestion of the government, the case was taken en banc. 831 F.2d 1487 (9th Cir.1987). Upon rehearing en banc, we are presented with three questions: (1) whether we should retain the rule established in United States v. McClelland, 731 F.2d 1438 (9th Cir.1984), cert. denied, 472 U.S. 1010, 105 S.Ct. 2708, 86 L.Ed.2d 723 (1985), which held that “inducement” need not be proven in an extortion conviction when property obtained from another by a public official was obtained “under color of official right,” (2) whether the jury instructions on mens rea were adequate, and (3) whether bias was established when a juror had previously committed an offense similar to the one being tried. As did the three-judge panel, we reverse and remand to the district court. In doing so, we overrule McClelland because we conclude that proof of “inducement” is a prerequisite to conviction of extortion. As a separate ground for reversal of the Hobbs Act convictions, we adopt the panel’s view that the mens rea instructions were inadequate. Contrary to the panel, we find no juror bias proven and therefore we affirm the non-Hobbs Act convictions. While we adopt extensive portions of the three-judge panel’s opinion, we modify it in several respects. Therefore, we withdraw the opinion of this court in Aguon I at 813 F.2d 1413 and replace it herewith. I Extortion: The Jury Instructions The relevant facts and proceedings regarding the jury instructions on the extortion charge are taken verbatim from Judge Noonan's opinion in Aguon I: es, a washing machine, a gas dryer, a microwave oven, and a refrigerator “to make her happy.” He gave them without payment because “like I said, I’m vendor it’s to me hard to ask money” and because “I don’t want the people don’t like my," }, { "docid": "22803003", "title": "", "text": "offense by the private individual, but not the offense by the public official. In the case of the private individual, the victim’s consent must be “induced by wrongful use of actual or threatened force, violence or fear.” In the case of the public official, however, there is no such requirement. The statute merely requires of the public official that he obtain “property from another, with his consent,... under color of official right.” The use of the word “or” before “under color of official right” supports this reading. Second, even if the statute were parsed so that the word “induced” applied to the public officeholder, we do not believe the word “induced” necessarily indicates that the transaction must be initiated by the recipient of the bribe. Many of the cases applying the majority rule have concluded that the wrongful acceptance of a bribe establishes all the inducement that the statute requires. They conclude that the coercive element is provided by the public office itself. And even the two courts that have adopted an inducement requirement for extortion under color of official right do not require proof that the inducement took the form of a threat or demand. See United States v. O’Grady, 742 F. 2d, at 687; United States v. Aguon, 851 F. 2d, at 1166. Petitioner argues that the jury charge with respect to extortion, see supra, at 257-258, allowed the jury to convict him on the basis of the “passive acceptance of a contribution.” Brief for Petitioner 24. He contends that the instruction did not require the jury to find “an element of du ress such as a demand/’ id., at 22, and it did not properly describe the quid pro quo requirement for conviction if the jury found that the payment was a campaign contribution. We reject petitioner’s criticism of the instruction, and conclude that it satisfies the quid pro quo requirement of McCormick v. United States, 500 U. S. 257 (1991), because the offense is completed at the time when the public official receives a payment in return for his agreement to perform specific official acts; fulfillment" }, { "docid": "23554457", "title": "", "text": "juvenile delinquent). In any event, the defense cross-examined Brower for three days, providing the jury with ample opportunity to judge Brower’s possible biases and motivations. See Bright v. Shimoda, 819 F.2d 227, 229 (9th Cir.1987) (“When substantial cross-examination has taken place, courts are less inclined to find confrontation clause violations.”), cert. denied, 485 U.S. 970, 108 S.Ct. 1246, 99 L.Ed.2d 444 (1988). Accordingly, we conclude that the district court did not improperly restrict cross-examination. V. Hobbs Act Jury Instructions Dischner argues that the instructions incorrectly set out the elements of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, because they failed to require the government to prove that Dis- chner knew he was not lawfully entitled to the property. He relies on the First Circuit’s opinion in United States v. Sturm, 870 F.2d 769 (1st Cir.1989), to urge that the statute requires the government to prove that the defendant did not have any claim of right, and knew he was not legally entitled to the property in question. Although Dischner asserts that objections were raised to the extortion instructions, the record provided to us fails to reflect an objection on this ground. We therefore review for plain error. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). “A plain error is a highly prejudicial error affecting substantial rights.” Id. (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). “The availability of a better instruction is not a ground for reversal,” United States v. Ward, 914 F.2d 1340, 1344 (9th Cir.1990), and in determining the adequacy of jury instructions, we examine them in their entirety. United States v. Feldman, 788 F.2d 544, 555 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). We require courts to instruct on the mens rea required by the Hobbs Act. United States v. Aguon, 851 F.2d 1158, 1168 (9th Cir.1988) (en banc) (Aguon II) (“[Cjriminal intent must be submitted to the jury in a case charging extortion under the Hobbs Act.... The" }, { "docid": "16687528", "title": "", "text": "don’t like company to do business with DOE.” He testified that he also bought a carpet selected by Aguon in Los Angeles and installed it in her house in Guam. He did this so he would have “no trouble” with his maintenance contract with DOE. Finally, he testified that he also put central air-conditioning in her home. The total value of these offerings was at least $8,500. Aguon was charged under Count Two of the indictment with having “knowingly and wilfully” committed extortion under 18 U.S.C. § 1951 in that she “did obtain and cause to be obtained” these goods, and she was convicted of that crime. Katherine B. Aguon, the defendant, was the Director of the Department of Education (DOE) of Guam between February 1980 and December 1982. A co-defendant was Pyong Hok Han, a Korean businessman, whose company, Hando Enterprises, Inc., was a vendor to DOE. Han testified that he gave Aguon dress- At the beginning of the case before any evidence was introduced, the trial court read what it characterized as instructions “which go to the essential elements of the criminal conduct that is charged here” in order to give the jury “some feel for the nature of the case.” The jury was told that the government had “to prove the case beyond a reasonable doubt.” The jury was told that to prove extortion the government would have to prove that the defendant “caused or attempted to cause another to part with money or property by threatening to withhold official action unless he did so.” The giving of preliminary instructions was well within the practice permitted by this circuit. Manual of Model Jury Instructions for the Ninth Circuit 29 (1985). The court’s instructions to the jury at the' close of the case were that the government must prove beyond a reasonable doubt “three essential elements ” in its case: First, that the defendant induced another under color of official right to part with property. Second, that she did so by extortion as defined in these instructions. Third, that in doing so, interstate commerce was delayed, interrupted or" }, { "docid": "11683617", "title": "", "text": "have adopted the language of United States v. Hathaway, 534 F.2d 386, 393 (1st Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976), which refers to the common law definition of extortion as a “public official’s corrupt taking of a fee under color of his office.” United States v. McClelland, 731 F.2d 1438, 1440 (9th Cir.1984) (emphasis added). The words “corrupt taking” are words of art referring to the mental element in the taking. The corrupt intention must be proved to prove the crime. The court’s failure to give an instruction on a vital element of the crime was plain error. A miscarriage of justice would result if the error was passed over as harmless. United States v. Young, 470 U.S. 1, 15-16, 105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1 (1985). The confusing instructions on inducement, on motivation, and on color of official right, the lack of an instruction on demand, and the lack of an instruction on specific intent require reversal of Aguon’s conviction on Count Two. Count Three charged Aguon and co-defendants Frank Granich and Ike Camacho with extortion in obtaining and causing to be obtained $42,000 from Kelly Song. Granich was the Supervisor of Buildings and Grounds of DOE. Camacho was the Business Administrator. Song, doing business as K.S. Enterprises, Inc., obtained a contract to paint the JFK school. Granich, confronted by a government tape recording of a conversation between Song and himself, decided to cooperate with the government. He testified that Song paid him $35,000 in cash to get the contract and that he, Granich, gave $15,000 of this amount to Camacho and $5,000 or $7,000 to Aguon. Granich testified that he gave the $5,000 or $7,000 to Aguon in two cash installments. He characterized the first amount when he gave it to her with these words: “This is a political contribution for you.” The second installment he delivered at a political meeting for the re-election of Governor Calvo. At neither time did he tell Aguon that the money came from Song. No instruction was given the jury on the meaning of" }, { "docid": "23554461", "title": "", "text": "property. Thus, even on Dischner’s theory the error would be harmless. VI. Sufficiency of Evidence for Extortion Counts Dischner contends the evidence was insufficient to convict on the Hobbs Act counts. The evidence is sufficient if, viewing it in the light most favorable to the government, any reasonable jury could find the elements of the crime beyond a reasonable doubt. United States v. Adler, 879 F.2d 491, 495 (9th Cir.1988). “The elements of a Hobbs Act violation are extortion and a nexus with interstate commerce.” United States v. Zemek, 634 F.2d 1159, 1173 (9th Cir.1980), cert. denied, 450 U.S. 916, 101 S.Ct. 1359, 67 L.Ed.2d 341 (1981). The statute defines “extortion” as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.” 18 U.S.C. § 1951(b)(2). Obtaining property is generally “wrongful” if the alleged extortionist has no lawful claim to that property. United States v. Enmons, 410 U.S. 396, 400, 93 S.Ct. 1007, 1010, 35 L.Ed.2d 379 (1973). Criminal intent must also be shown. Aguon II, 851 F.2d at 1168. Thus, in order to prove extortion by wrongful use of force or fear, the government must establish that (1) the defendant induced someone to part with money, property, or other valuable right by the wrongful use or threat of force or fear; (2) the defendant acted with the intent to obtain money or property that defendant knew he was not entitled to receive; and (3) commerce from one state to another was or would have been affected in some way. See Manual of Model Jury Instructions for the Ninth Circuit, Instruction 8.31A at 212 (1989). A. Count Five Count five involved a $19,000 payment from William Fowler, President of Alaska International Construction (AIC), to Dischner in the spring of 1983. AIC was involved in a water and sewer project in the Borough. At some point during the project, Dischner learned from Dana Pruhs, a governmental affairs liaison and lobbyist for Enserch Corp. (the owner of AIC), that AIC had purchased $119,000 of materials" }, { "docid": "11683599", "title": "", "text": "with DOE.” He testified that he also bought a carpet selected by Aguon in Los Angeles and installed it in her house in Guam. He did this so he would have “no trouble” with his maintenance contract with DOE. Finally, he testified that he also put central air-conditioning in her home. The total value of these offerings was at least $8,500. Aguon was charged under Count Two of the indictment with having “knowingly and wilfully” committed extortion under 18 U.S.C. § 1951 in that she “did obtain and cause to be obtained” these goods, and she was convicted of that crime. At the beginning of the case before any evidence was introduced, the trial court read what it characterized as instructions “which go to the essential elements of the criminal conduct that is charged here” in order to give the jury “some feel for the nature of the case.” The jury was told that the government had “to prove the case beyond a reasonable doubt.” The jury was told that to prove extortion the government would have to prove that the defendant “caused or attempted to cause another to part with money or property by threatening to withhold official action unless he did so.” The giving of preliminary instructions was well within the practice permitted by this circuit. Manual of Model Jury Instructions for the Ninth Circuit 29 (1985). The court’s instructions to the jury at the close of the case were that the government must prove beyond a reasonable doubt “three essential elements” in its case: First, that the defendant induced another under color of official right to part with property. Second, that she did so by extortion as defined in these instructions. Third, that in doing so, interstate commerce was delayed, interrupted or adversely affected. [Italics supplied] The court defined “wrongful” as “the obtaining of property by an alleged extortionist to which he has no lawful claim.” “Therefore,” the court said, proof “that the defendant obtained property under color of official right and that he was not lawfully entitled to this property” was “sufficient to establish that this" }, { "docid": "3088932", "title": "", "text": "Union Electric and the North American Company, for the purpose of making political contributions for the benefit of the parent holding companies. Egan testified that the contribution was made from his own money. He was not convicted for the substantive offense of making contributions to a political party or committee in violation of § 12 (h) of the Act. The evidence in reference to the Colliery Company salary and his contributions to the party committee was offered and received on the issue of Egan’s knowingly participating in the conspiracy. The jury was not called upon under the conspiracy count to determine whether Egan personally violated § 12(h) of the Act. The court did not err in refusing the requested instruction. Some of the government’s evidence related to the payment of money after February 25, 1937, to persons holding public office at the time of the receipt of the money. As to such payments the court instructed the jury: “If you find from the evidence that such payments were not, in fact, in connection with the candidacies, nominations, or elections of such persons, they would not be in violation of said section 12 (h). But, on the other hand, if you find from the evidence that such payments were, in fact, made in connection with the candidacies, nominations or elections of such persons, then such payments would be in violation of section 12 (h).” An exception was taken to this charge by Egan, although no reason for the exception was given. Compare United States v. Turley, supra, 2 Cir., 135 F.2d at page 869. The objection urged in this court is that contributions to officers who are not candidates for office at the time of the payment do not violate the law, and that there is no evidence that any of the recipients of such payments then contemplated being candidates at future elections. We fail to see how this instruction concerns Egan’s appeal. The instruction is applicable to the substantive offenses charged in counts 2 to 8 inclusive and not to the conspiracy charge. There was abundant evidence of overt acts" }, { "docid": "16687556", "title": "", "text": "words: “This is a political contribution for you.” The second installment he delivered at a political meeting for the re-election of Governor Calvo. At neither time did he tell Aguon that the money came from Song. No instruction was given the jury on the meaning of “under color of official right.” Mens rea, which had to be proved if receipt of political contributions was to be converted into extortion, was never set before the jury. Plain error was committed. The conviction on this count must also be reversed. IV Conspiracy to Extort. The Jury Instructions We adopt Judge Noonan’s treatment of the conspiracy issue in Aguon I. Count One charged Aguon, Granich, Han, Song and several other employees of DOE and private contractors with conspiring “to commit extortion” under 18 U.S.C. § 1951. The overt acts in furtherance of the conspiracy alleged to have been committed by Aguon were the receipt of Han’s offerings and the cash from Song. In the court’s “preliminary instructions” before the introduction of evidence, the court explained the elements of conspiracy in terms of the general conspiracy statute, 18 U.S.C. § 371. A jury listening to these instructions would have gathered that Aguon was being tried under the general conspiracy statute not under the much more specific “conspiracy to commit extortion” statute. Despite the language of the indictment, the more general statute was alone the focus. In the court’s final instructions to the jury the court gave an instruction on conspiracy which covered conspiracy to commit extortion under the Hobbs Act, conspiracy to commit mail fraud and conspiracy to obstruct justice. The court declared, “The following instruction on conspiracy applies to both counts.” The court then quoted the language of the general conspiracy statute, 18 U.S.C. § 371: “If two or more persons conspire ... to commit any offense against the United States.... ” The court continued with instructions applicable to the general conspiracy statute. After about five pages of instruction on the general law of conspiracy, the court said: The defendant may be found guilty of the crimes of conspiracy to extort in Count" }, { "docid": "6995928", "title": "", "text": "prove that the defendant demanded or directly solicited the payment made or that he offered anything specific in return for it.” Although the instruction adequately took into account existing circuit law at the time relating to the required element of inducement under Aguon II, it removed from the jury McCormick’s requirement that they find a “quid pro quo, ” defined as “an explicit promise or undertaking by the official to perform or not to perform an official act.” Id. at 1816. In finding the court’s instructions inadequate in this case, we note that McCormick does not upset the Ninth Circuit requirement of Aguon II regarding the necessity of proving inducement as an element of the crime. As noted, the Court in McCormick expressly declined to resolve a split in the circuits over whether inducement is a required element of a Hobbs Act offense. See n. 1, supra. Instead, the Court set forth an additional requirement of a “quid pro quo ” as an element necessary to prove extortion under color of official right under the Hobbs Act. In sum, Ninth Circuit and Supreme Court law require, in order to convict a defendant of a Hobbs Act violation, that an official induce the making of payments, i.e., initiate, either explicitly or implicitly, communications that inform constituents that his actions are subject to being influenced, as well as make an explicit promise to carry out official actions or inaction on behalf of constituents in exchange for the making of payments. Put another way, Aguon II involves how the transaction originated, whereas McCormick involves the nature of the bargain struck. We conclude that the instructions given in this case omitted an essential element of the crime of extortion under the Hobbs Act, as specified in McCormick. This omission is not harmless because, in light of ambiguous evidence on the existence of a “quid pro quo,” the omission could have allowed the jury to convict on an impermissible basis. See McCormick, 111 S.Ct. at 1817. Accordingly, we reverse Montoya’s Hobbs Act convictions on Counts II, VI, VII, VIII, and IX of the indictment. 2." }, { "docid": "16687555", "title": "", "text": "470 U.S. 1, 15-16, [105 S.Ct. 1038, 1046-47, 84 L.Ed.2d 1] (1985). The confusing instructions on inducement, on motivation, and on color of official right, ... and the lack of an instruction on specific intent require reversal of Aguon’s conviction on Count Two. Count Three charged Aguon and co-defendants Frank Granich and Ike Camacho with extortion in obtaining and causing to be obtained $42,000 from Kelly Song. Granich was the Supervisor of Buildings and Grounds of DOE. Camacho was the Business Administrator. Song, doing business as K.S. Enterprises, Inc., obtained a contract to paint the JFK school. Granich, confronted by a government tape recording of a conversation between Song and himself, decided to cooperate with the government. He testified that Song paid him $35,000 in cash to get the contract and that he, Granich, gave $15,000 of this amount to Camacho and $5,000 or $7,000 to Aguon. Granich testified that he gave the $5,000 or $7,000 to Aguon in two cash installments. He characterized the first amount when he gave it to her with these words: “This is a political contribution for you.” The second installment he delivered at a political meeting for the re-election of Governor Calvo. At neither time did he tell Aguon that the money came from Song. No instruction was given the jury on the meaning of “under color of official right.” Mens rea, which had to be proved if receipt of political contributions was to be converted into extortion, was never set before the jury. Plain error was committed. The conviction on this count must also be reversed. IV Conspiracy to Extort. The Jury Instructions We adopt Judge Noonan’s treatment of the conspiracy issue in Aguon I. Count One charged Aguon, Granich, Han, Song and several other employees of DOE and private contractors with conspiring “to commit extortion” under 18 U.S.C. § 1951. The overt acts in furtherance of the conspiracy alleged to have been committed by Aguon were the receipt of Han’s offerings and the cash from Song. In the court’s “preliminary instructions” before the introduction of evidence, the court explained the elements of" }, { "docid": "9799238", "title": "", "text": "HUG, Circuit Judge: Appellant Joseph B. McClelland appeals the district court’s denial of his petition to have his 1984 extortion conviction set aside. McClelland initiated this action by filing a motion pursuant to 28 U.S.C. § 2255. Because McClelland is no longer in custody, the district court treated his motion as a petition for a writ of error coram nobis. McClelland contends the judge in his extortion trial gave an erroneous instruction to the jury and that this constitutes fundamental error necessitating a reversal of his conviction. FACTS McClelland was convicted of Attempted Interference with Commerce by Extortion, in violation of the Hobbs Act, 18 U.S.C. § 1951(a), following an FBI sting operation. At trial, over defense objection, the court instructed the jury that the Government was not required to show that McClelland induced a government agent named Rybar to make an improper payment to him because of his official position. This ruling was affirmed on appeal. See United States v. McClelland, 731 F.2d 1438 (9th Cir.1984), cert. denied, 472 U.S. 1010, 105 S.Ct. 2708, 86 L.Ed.2d 723 (1985), overruled by United States v. Aguon, 851 F.2d 1158 (9th Cir.1988) (en banc). In 1988, however, we held in an en banc decision that inducement is an essential element of extortion. See United States v. Aguon (Aguon II), 851 F.2d 1158, 1166 (9th Cir.1988) (en banc). We noted that this was contrary to our prior panel decision in McClelland and therefore overruled that decision. Id. at 1160. Based on Aguon II, McClelland petitioned the district court to overturn its decision in his case. The district court found that the proceedings in McClelland’s extortion trial did not constitute fundamental error. 732 F.Supp. 1534. Thus, it did not vacate the conviction. We now hold that our decision in Aguon II, finding that inducement is an essential element of extortion, is fully retroactive and failure to properly instruct the jury on this required element constitutes fundamental error. Accordingly, we reverse the district court’s judgment in this case and remand the case to that court with direction to issue the writ of error coram nobis." }, { "docid": "6995921", "title": "", "text": "Aguon (Aguon II), 851 F.2d 1158 (9th Cir.1988) (en banc), we held that in order to obtain a conviction under the Hobbs Act for extortion “under color of official right,” the prosecution must prove the defendant in duced the improper payment. Aguon II, 851 F.2d at 1160, 1166, 1172. The Supreme Court recently enunciated an additional requirement for a Hobbs Act conviction of extortion “under color of official right” in McCormick v. United States. In that case, the defendant contended that the alleged extortionate payments were received as legitimate election campaign contributions. The Supreme Court held that, in order to establish the Hobbs Act violation, the prosecution had to prove that the payments were “made in return for an explicit promise or undertaking by the official to perform or not to perform an official act.” McCormick, 111 S.Ct. at 1816. In other words, the prosecution had to prove an explicit “quid pro quo.” Id. In McCormick, the Court reversed a Hobbs Act conviction of a state legislator for extortion “under color of official right.” The legislator had informed a lobbyist during a reelection campaign “that his campaign was expensive, that he had paid considerable sums out of his own pocket, and that he had not heard anything” from the constituents. After the lobbyist contacted the constituents, a number of cash payments were paid by the constituents to McCormick. McCormick neither listed any of these payments as campaign contributions nor reported the money as income on his federal tax return. It was undisputed that the payments were illegal under state law. McCormick then sponsored and advocated successfully for passage of the constituents’ proposed legislation, and received an additional cash payment two weeks after the legislation was enacted. The jury convicted McCormick on one of five charged Hobbs Act counts pursuant to instructions that informed them “that to establish a Hobbs Act violation the Government had to prove that McCormick induced a cash payment and that he did so knowingly and willfully by extortion.” Id. at 1810. The district court further instructed the jury on the required proof with respect to the" } ]

[ { "docid": "17087401", "title": "", "text": "of citizenship. Plaintiff was then allowed to amend his complaint, which he did on October 18, 1996. The amended complaint contained six state-law causes of action, four against the corporate defendant and two against the individual defendant for defamation and tortious interference with business relationships. In May of this year, the Court granted a motion dismissing two of the claims against the corporate defendant, breach of implied contract and negligent misrepresentation (based upon a statute of limitations defense). On a motion for reconsideration, the dismissal of the count for negligent misrepresentation was withdrawn because of plaintiff’s claim of a continuing course of conduct. (There were several other motions for reconsideration along the way which were denied). The case, therefore, went to trial on four of plaintiff’s claims: negligent misrepresentation, defamation, tortious interference with business relationships, and negligent infliction of emotional distress. During the trial the plaintiff withdrew his defamation claim against the individual defendant, Regina Kramer. At the conclusion of all of the evidence, the Court granted judgment as a matter of law as to the plaintiff’s defamation claim against Carrier and his tortious interference claim against Kramer. This eliminated Regina Kramer as a defendant in the ease. The Court then submitted the negligent misrepresentation and negligent infliction of emotional distress claims to the jury, while reserving final decision on the defendant’s motion as to those counts. As noted earlier, the jury found in favor of defendant Carrier on the negligent misrepresentation claim and for the plaintiff on the negligent infliction of emotional distress claim, awarding compensatory damages in the amount of $400,000. On October 20, 1997, defendant Carrier formally renewed its motion for judgment as a matter of law pursuant to Rule 50(b), Fed. R.Civ.P., and filed a supplemental Memorandum of Law in support thereof. (A separate motion for a new trial or a remittitur has recently been filed). RULE 50(b) STANDARD A judgment as a matter of law will be entered only where there is no evidentiary basis for a reasonable jury to find for the prevailing party. A district court may grant a motion for judgment as" } ]

[ { "docid": "15707575", "title": "", "text": "and negligent infliction of emotional distress, unreasonable publication of private facts, and false light invasion of privacy. Kelly brought a claim for loss of consortium. Defendants moved for summary judgment on all claims. In a published memorandum and order, Veilleux v. National Broadcasting Co., Inc., 8 F.Supp.2d 23 (D.Me.1998), the district court dismissed Kennedy’s (but not Ray’s) claim for misrepresentation on the ground that Kennedy had failed to demonstrate pecuniary loss, as required by Maine law. It also dismissed all plaintiffs’ claims for intentional infliction of emotional distress and for punitive damages. The court allowed the remaining claims to proceed to trial. In the course of an eleven-day trial, the defendants moved for judgment as a matter of law at the close of the plaintiffs’ case. The district court denied that motion. The jury awarded Ray $150,000 for pecuniary loss on his misrepresentation claim; $50,000 for physical injury and/or emotional distress on his negligent infliction of emotional distress, defamation, and false hght claims; and $100,000 for injury to reputation on the defamation and false hght claims. It gave Kehy $50,000 for loss of consortium. The jury awarded Kennedy $100,000 for emotional distress on his unreasonable publication, negligent infliction of emotional distress, defamation, and false hght claims; and $75,000 for injury to his reputation on the unreasonable publication, defamation, and false hght claims. The court entered judgment for plaintiffs on July 8,1998. On July 22, 1998, defendants moved again for judgment as a matter of law, or in the alternative for a new trial or remitti-tur. The district court rejected the defendants’ legal arguments “for the reasons set forth in its summary judgment memorandum and order and elsewhere in the record,” and held that, “viewing the trial evidence in a hght most favorable to plaintiffs and drawing ah justifiable inferences in their favor, there is a legally sufficient basis on which a reasonable jury could have rendered the verdict that this jury did.” The court also declined to reduce the damages award. Accordingly, an amended judgment was entered on September 22, 1998. This appeal followed. III. SUMMARY OF OPINION Reviewing the" }, { "docid": "11200582", "title": "", "text": "Town of Islip Code was a valid exercise of police power); 4M Holding Co., Inc., 81 N.Y.2d at 1054-55, 601 N.Y.S.2d 458, 619 N.E.2d 395 (“Town Board of Islip’s resolution requiring petitioner to clear 33,000 cubic yards of burning debris from its property in 10 days was not arbitrary, capricious or contrary to law”). Therefore, Defendant’s motion for summary judgment on Plaintiffs claim that Section 45 of the Code of the Town of Brookhaven is unconstitutional is granted. E. State Law Claims Plaintiff asserts various state law claims, including, inter alia, intentional infliction of emotional distress, negligent infliction of emotional distress, and trespass. (i)Intentional Infliction of Emotional Distress The tort of intentional infliction of emotional distress has four (4) elements: (1) extreme and outrageous conduct; (2) an intent to cause, or a disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and injury; and (4) severe emotional distress. Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993). However, even if Plaintiff could demonstrate that Defendants’ conduct was outrageous, recovery would nevertheless be precluded because he has failed to establish actual emotional distress. Baez v. City of Amsterdam, 245 A.D.2d 705, 706, 666 N.Y.S.2d 312 (3d Dep’t 1997). Moreover, “[d]amages may not be recovered for emotional distress caused by intentional or negligent harm to personal property.” Biondo v. Linden Hill United Methodist Cemetery Corp., 280 A.D.2d 570, 570, 720 N.Y.S.2d 558 (2d Dep’t 2001). Therefore, Defendants’ motion for summary judgment on Plaintiffs claim of intentional infliction of emotional distress is granted. (ii)Negligent Infliction of Emotional Distress Plaintiff contends that the Town negligently caused him to suffer emotional distress by damaging his property. (Compl., at 15.) To prevail on a claim of negligent infliction of emotional distress, a plaintiff must prove a breach of a duty owed to plaintiff which exposes him or her to an unreasonable risk of bodily injury or death. Bovsun v. Sanperi, 61 N.Y.2d 219, 473 N.Y.S.2d 357, 461 N.E.2d 843 (N.Y. 1984). “While physical injury is not a necessary element" }, { "docid": "3723292", "title": "", "text": "Emotional Distress Plaintiffs next cause of action alleges that defendant negligently inflicted emotional distress. Under Connecticut law, plaintiff naust prove that defendant knew or should have known that its conduct ‘‘involved an unreasonable risk of causing'emotional distress” and that the distress, “if it was caused, might result in illness or bodily harm.” Montinieri v. Southern New England Telephone Co., 175 Conn. 337, 345, 398 A.2d 1180, 1184 (1978); see Barrett v. Danbury Hosp., 232 Conn. 242, 260-61, 654 A.2d 748, 757 (1995); Buckman v. People Express, Inc., 205 Conn. 166, 173, 530 A.2d 596, 600 (1987). While plaintiff claims that she lost the esteem of her peers, she suffered physical injuries, including insomnia, stomach disorders, anxiety, and headaches, and .she lost substantial income, this is not the standard for determining if plaintiff has established a prima facie case for negligent infliction of emotional distress. See PlaintifPs Reply Brief, at 14 (citing Miner v. City of Glens Falls, 999 F.2d 655, 663 (2d Cir.1993) (discussing an award of damages for emotional distress under section 1983)). In the employment context, negligent infliction of emotional distress arises only if it is “ ‘based upon unreasonable conduct of the defendant in the termination process.’ ” Parsons v. United Technologies Corp., Sikorsky Aircraft Div., 243 Conn. 66, 88, 700 A.2d 655, 667 (1997) (quoting Morris, 200 Conn. at 682, 513 A.2d at 69); see Hill v. Pinkerton Sec. & Investigation Servs., Inc., 977 F.Supp. 148, 159 (D.Conn.1997) (granting defendant’s summary judgment motion because, although plaintiff may not have been satisfied with defendant’s manner in handling the investigation of her compensation complaint, the record did not indicate that defendant acted so negligently as to sustain an action for negligent infliction of emotional distress). A plaintiff cannot rely on the allegedly wrongful termination alone. Parsons, 243 Conn, at 88-89, 700 A.2d at 667. Instead, Thomas must allege additional unreasonable conduct on defendant’s part that occurred with respect to her termination. Hill, 977 F.Supp. at 159; see Parsons, 243 Conn, at 88, 700 A.2d at 667. While plaintiff has alleged that she suffered mental anguish and humiliation due" }, { "docid": "2764685", "title": "", "text": "the plaintiff? Yes _ No _ Count Two — NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS 7. Has the plaintiff, Frank' Martinelli, proven by a preponderance of the evidence each of the required elements of his negligent infliction of emotional distress claim against the defendant Diocese? a) That the defendant Diocese engaged in negligent conduct which violated a duty of care owed by the defendant to the plaintiff? Yes _ No _ b) That the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress to the plaintiff? Yes _ No _ c) That the defendant should have realized that the emotional distress, if it were caused, might result in illness or bodily harm to the plaintiff? Yes _ No _ d) That the plaintiff suffered emotional distress that was proximately caused by the defendant’s conduct? Yes _ No _ Damages 8. If you have answered “YES” to question No. 6A and “NO” to question No. 6B, or if you have answered “YES” to all parts of question No. 7, to what damages award, if any, is the plaintiff entitled? 9. If you have awarded either compensatory or nominal damages in response to question No. 8, do you find that the plaintiff has proved the defendant Diocese’s liability for punitive damages? Yes _ No ____ Date/Time Signature of Foreperson . Father Brett was dismissed as a defendant on July 31, 1997 due to lack of service of process. . In the absence of any evidence that the molestation had actually taken place in the course of Brett's conduct of his religious duties, the Court granted defendant’s Motion for Judgment on Count 4 for vicarious liability for Brett's actions. . The statute reads in pertinent part: \"Notwithstanding the provisions of Section 52-577, no action to recover damages for personal injury to a minor, including emotional distress, caused by sexual abuse, sexual exploitation or sexual assault, may be brought by such person later than seventeen years from the date such person attains the age of majority.” Conn. Gen.Stat. § 52-577d. . See Conn. Gen.Stat. § 1 — Id (until" }, { "docid": "229095", "title": "", "text": "of the amended complaint demonstrate a degree of unreasonable risk, of which the defendants should have been aware, sufficient to give rise to a claim of negligent infliction of emotional distress. Because the defendants deny the allegations and any purported injuries, genuine issues of material fact exist with regard to this claim. Because this claim requires a determination of the facts involved in the alleged incident, it is appropriate to reserve the issue for a jury determination. Accordingly, the motion for summary judgment, as it relates to the negligent infliction of emotional distress claim, is denied. Intentional Infliction of Emotional Distress In order to prevail on a claim of intentional infliction of emotional distress under Connecticut law, a plaintiff must prove the following four elements: (1) that defendants intended to inflict emotional distress or that they knew or should have known that emotional distress was likely result of their conduct; (2) the conduct was extreme and outrageous; (8) the defendants’ conduct was the cause of the plaintiffs distress; and (4) the plaintiff suffered severe emotional distress. To prove that the alleged conduct was extreme and outrageous, the plaintiff must show that it “ ‘exceeded] all bounds usually tolerated by decent society, of a nature which is especially calculated to cause, and does cause, mental distress of a very serious kind.’ ” DeLaurentis v. City of New Haven, 220 Conn. 225, 267, 597 A.2d 807 (1991). Under Connecticut law, before a claim for intentional infliction of emotional distress may be submitted to a jury, the court must first determine that the conduct may be reasonably regarded as “extreme and outrageous so as to permit recovery.” Reed v. Signode Corp., 652 F.Supp. 129, 137 (D.Conn.1986). Only when the court determines that reasonable minds may differ should the claim be submitted to a jury. Id. In the instant case, Birdsall alleges that the defendant officers “spun [him] around and pushed [him] down” over the food preparation table in the restaurant’s kitchen. Pla. Memo. Exh. A, Pl. Dep., p. 77, lines 11-12. Birdsall alleges that one officer then hit him repeatedly with a flashlight." }, { "docid": "2764610", "title": "", "text": "of the Diocese resulting from defendant’s failure to investigate, warn and take remedial action following its knowledge of the sexual misconduct by Father Laurence Brett, one of its parish priests. At the close of evidence, the defendant moved for judgment as a matter of law pursuant to Fed.R.Civ.P. 50(a) [doc. # 167]. The Court reserved decision on defendant’s motion as to Counts 3 and 4 (breach of fiduciary duty to investigate/warn/take appropriate remedial action and negligent infliction of emotional distress) as contemplated under Fed.R.Civ.P. 50(b). The jury returned a verdict for the plaintiff on Count 3, awarding $750,000 damages. The amount of this verdict has not been challenged in defendant’s post-trial motions, only the adequacy of evidence supporting it and a belated First Amendment challenge. By use of a special verdict form, the jury found that the plaintiff proved by a preponderance of the evidence that a fiduciary relationship existed between himself and the Diocese, and that the Diocese failed to prove by clear and convincing evidence that it acted consistently with that duty. The jury also found that the defendant Diocese failed to disprove by clear and convincing evidence any of the elements of the fraudulent concealment exception to the statute of limitations, which would otherwise have barred this case. On the count of Negligent Infliction of Emotional Distress, the jury found that the defendant engaged in negligent conduct that violated a duty of care owed by it to the plaintiff, should have realized that its conduct involved an unreasonable risk of causing emotional distress to the plaintiff, and that the defendant should have realized that the emotional distress might result in illness or bodily harm to the plaintiff. The jury found, however, that the plaintiff had not proved that he suffered emotional distress that was proximately caused by the this negligent conduct. The defendant’s post-trial Rule 50 motion therefore concerns only Count 3, breach of fiduciary duty [doc. # 197], Summary of Facts The jury could have reasonably found the following facts from the evidence presented. In June 1962, as a newly-ordained and personally charismatic priest, Father Brett" }, { "docid": "14078569", "title": "", "text": "ruling, and the count survives. C. Third and Fourth Counts: Negligent and Intentional Infliction of Emotional Distress The defendant argues that both negligent and intentional infliction of emotional distress claims should be stricken because the conduct alleged is not extreme and outrageous. Defendant United Parcel Service’s Memorandum of Law in Support of Motion Under Rule 12(b)(6) and Rule 12(e) (“Defs Mem Supp.”) [Dkt. No. 9] at 7. The plaintiff responds that he has stated a cause of action for both torts and that the factual allegations in his complaint suffice as a matter of law to support the conclusion that the defendant engaged in “extreme and outrageous conduct.” The court finds that the plaintiff has alleged sufficient facts to survive a motion to dismiss and thus denies the motion to dismiss with respect these state law tort claims. To establish a claim of intentional infliction of emotional distress under Connecticut law a plaintiff must plead and prove that (a) defendant ] intended to inflict emotional distress, or knew or should have known that emotional distress was a likely result of [its] conduct; (b) defendant’s] conduct was extreme and outrageous; (c) defendant’s] conduct caused the plaintiff’s distress; and (d) the emotional distress suffered by the plaintiff was severe. Mercer v. Brunt, 272 F.Supp.2d 181, 188 (D.Conn.2002). In contrast, to prove a claim of negligent infliction of emotional distress, the plaintiff must establish that the defendants “knew or should have known that [their] conduct involved an unreasonable risk of causing emotional distress and that the distress, if it were caused, might result in illness or bodily harm.” Buckman v. People Express, Inc., 205 Conn. 166, 173, 530 A.2d 596 (Conn. 1987) (emphasis and internal quotation marks omitted). Thus, unlike a claim for intentional infliction of emotional distress, the plaintiff need not show “extreme and outrageous conduct” by the defendant in order to state a cause of action under negligent infliction of emotional distress. Because the plaintiff has alleged in his complaint all the necessary elements for both infliction claims, including “extreme and outrageous conduct” with respect to his intentional infliction cause of" }, { "docid": "4451155", "title": "", "text": "inflicted emotional distress upon her. In her Memorandum in Opposition to NESC’s Motion for Summary Judgment, however, Adams states that she “does not contest summary judgment in favor of [NESC] with respect to Count Eight of Plaintiffs Complaint.” Mem. in Opp., Doc. No. 82, at fn. 1. Consequently, NESC’s Motion for Summary Judgment is granted as to Count Eight, Adams’ IIED claim against NESC. 2. NIED Claims Against NESC and Verifications In Counts Seven and Eleven, Adams alleges that NESC and Verifications, respectively, are liable for negligent infliction of emotional distress. NESC and Verifications have moved for summary judgment on these claims. To prevail on a claim of negligent infliction of emotional distress under Connecticut law, a plaintiff must show that: “(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiffs distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiffs distress.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 444, 815 A.2d 119 (Conn.2003). Because Adams has presented sufficient evidence to create a genuine issue of material fact as to each of these four elements, neither NESC nor Verifications are entitled to summary judgment as to Counts Seven and Eleven. See, e.g., Adams Depo. at 104-105, 192-193, 198-201 (recounting the financial, physical, and emotional damages Adams sustained as a result of NU’s rescinding its offer of employment in May 2007). C. Defendants’ Cross-Claims Both NESC and Verifications have moved for summary judgment as to the cross-claims filed by Verifications against NESC. Verifications brings two cross claims: (1) Under the principles of common law indemnity and/or contribution, NESC is obligated to indemnify Verifications, or, in the alternative, is liable for such proportion of any judgment as the relative responsibilities may warrant; and (2) Verifications is entitled to contractual contribution and/or indemnification from NESC because Verifications and NESC entered into a User Certification and Client Services Agreement (“User Service Agreement”) in which they agreed that, if adverse employment action was to be taken based" }, { "docid": "17087419", "title": "", "text": "the Alabama Supreme Court held that the trial court should have granted the defendant’s motion for a directed verdict in an action by a former employee for intentional infliction of emotional distress. Although an employer has “no roving license to treat his employee in an extreme and outrageous manner,” id. at 364, the court held that proof that the employer’s investigation of the employee was disorganized and humiliating was not enough to show outrageous behavior. DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW This, however, is a diversity action brought under Connecticut law and we are compelled to follow the rulings of the Connecticut courts. In this case we appropriately charged the jury that: To prove this claim the plaintiff must prove by a fair preponderance of the evidence each of the following four elements; 1, that the defendant’s conduct created an unreasonable risk of causing emotional distress; 2, that the defendant knew or should have known that its conduct created this unreasonable risk, and from the facts known to it at the time it acted, that the emotional distress, if caused, might result in illness or bodily harm to the plaintiff; 3, that the defendant’s conduct was the proximate or legal cause of plaintiffs emotional distress; and 4, that the emotional distress that the plaintiff suffered was severe. We further explained to the jury that for the plaintiff to meet his burden of proof, he could not merely establish that his employment was terminated and that he was upset. I instruct you, ladies and gentlemen, that the mere fact that the plaintiff was terminated at the conclusion of the two year program and that he was upset is not sufficient evidence for the plaintiff to meet his burden on this element. An employee may not recover damages from an employer simply because he was fired or denied a job, even if the employer’s decision was very distressing for the employee. The foregoing accurately states the law of Connecticut and no exception was taken to that charge. Defendant Carrier now contends that there was inadequate evidence for the jury" }, { "docid": "14198683", "title": "", "text": "he suffered these symptoms “to an extraordinary degree”); Esposito v. Conn. College, 28 Conn.L.Rptr. 47, 2000 WL 1337665 (Conn.Super.2000) (granting summary judgment in favor of defendants on intentional infliction of emotional distress claim where “plaintiffs submissions failfed] to indicate any symptoms or conditions suffered by plaintiff’); MacDonald v. Howard, 28 Conn.L.Rptr. 373, 2000 WL 1687119 (Conn.Super.2000) (noting that “merely alleging extreme emotional distress unsupported by factual allegations is legally insufficient” to sustain a claim for intentional infliction of emotional distress). The plaintiff has failed to allege the required elements of a claim for intentional infliction of emotional distress, and the claim set forth in Count Two therefore fails as a matter of law. Each of the defendants is therefore entitled to summary judgment as to Count Two. E. Count Three: Negligent Infliction of Emotional Distress The defendants argue that they are entitled to summary judgment on the claim of negligent infliction of emotional distress as well. The Connecticut Supreme Court recognized a cause of action for negligent infliction of emotional distress, where no physical injury ensues to the victim, in Montinieri v. S. New England Tel., 175 Conn. 337, 398 A.2d 1180 (1978). In order to prevail on a claim for negligent infliction of emotional distress, a plaintiff must show that “the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it was caused, might result in illness or bodily harm.” Montinieri, 398 A.2d at 1184. The Montinieri test “requires that the fear or distress experienced by the plaintiff ] be reasonable in light of the conduct of the defendants.” Barrett v. Danbury Hosp., 232 Conn. 242, 654 A.2d 748, 757 (1995). See, e.g., Ancona, 746 A.2d at 192-93 (upholding trial court ruling in favor of defendant on claim for negligent infliction of emotional distress where “the plaintiff failed to show that the defendant should have anticipated that its [filing a lawsuit against the plaintiff] would cause the plaintiff any emotional distress beyond that normally associated with litigation”). Although a claim for negligent infliction of emotional distress does not" }, { "docid": "229094", "title": "", "text": "attempts to impute liability to the City of Hartford for the alleged wrongdoing of its employees. As stated above, Monell does not allow a claim of municipal liability based upon a theory of respondeat superior. Birdsall does not allege that there was a specific municipal policy that was the root cause of his injuries, nor does he suggest that there was a custom of constitutional abuses beyond the incident alleged in his complaint. For these reasons, summary judgment shall enter against plaintiff on his claims against the City of Hartford. Infliction of Emotional Distress Negligent Infliction of Emotional Distress Connecticut courts have consistently held that, “in order to prevail on a claim of negligent infliction of emotional distress, the plaintiff must prove that the defendant should have realized that its conduct involved an unreasonable risk of causing emotional distress and that that distress, if it were caused, might result in illness or bodily harm.” Carrol v. Allstate Ins. Co., 262 Conn. 433, 815 A.2d 119 (2003). The physical injuries alleged by Birdsall in paragraph 11 of the amended complaint demonstrate a degree of unreasonable risk, of which the defendants should have been aware, sufficient to give rise to a claim of negligent infliction of emotional distress. Because the defendants deny the allegations and any purported injuries, genuine issues of material fact exist with regard to this claim. Because this claim requires a determination of the facts involved in the alleged incident, it is appropriate to reserve the issue for a jury determination. Accordingly, the motion for summary judgment, as it relates to the negligent infliction of emotional distress claim, is denied. Intentional Infliction of Emotional Distress In order to prevail on a claim of intentional infliction of emotional distress under Connecticut law, a plaintiff must prove the following four elements: (1) that defendants intended to inflict emotional distress or that they knew or should have known that emotional distress was likely result of their conduct; (2) the conduct was extreme and outrageous; (8) the defendants’ conduct was the cause of the plaintiffs distress; and (4) the plaintiff suffered severe emotional" }, { "docid": "12535688", "title": "", "text": "that Fleet’s motive in transferring her to a position near Coville was retaliatory. For the foregoing reasons, Fleet’s motion for summary judgment is granted as to plaintiffs retaliation claims (Counts Two and Five). D. Negligent Infliction of Emotional Distress Fleet contends that it is entitled to summary judgment on plaintiffs claim for negligent infliction of emotional distress, on the ground that Fleet did not engage in unreasonable conduct in the termination process. Alternatively, Fleet argues that plaintiff cannot establish the required element of unreasonableness. In support of its argument that only conduct in the termination process can give rise to a claim for negligent infliction of emotional distress, Fleet relies on Parsons v. United Tech. Corp., Sikorsky Aircraft Div., 243 Conn. 66, 88, 700 A.2d 655 (1997), in which the Connecticut Supreme Court held that, “negligent infliction of emotional distress in the employment context arises only where it is based upon unreasonable conduct of the defendant in the termination process.” Id. (citations and internal quotation marks omitted). Parsons, however, was a termination case, and the Connecticut Supreme Court did not discuss whether negligent infliction of emotional distress was actionable outside the termination context. In Malik v. Carrier Corp., 202 F.3d 97, 103 (2d Cir.2000), the Second Circuit considered Parsons and held that claims for negligent infliction of emotional distress brought under Connecticut law are not limited to unreasonable conduct in the termination process. This holding was based in part on dicta in Parsons that stated that “few courts have addressed the requirements of a claim for [emotional distress] within the employment relationship as a whole, much less in the context of the termination of such a relationship.” Id. 0quoting Parsons, 243 Conn. at 89, 700 A.2d 655); accord Karanda v. Pratt & Whitney Aircraft, No. CV-98-582025S, 1999 WL 329703, at *5 (Conn.Super.Ct. May 10, 1999) (holding that the Connecticut Supreme Court “would permit a negligent infliction of emotional distress claim against an employer when no termination is alleged.”). Fleet’s argument that the negligent infliction of emotional distress claim must pertain to the termination process thus fails under Malik. Fleet also" }, { "docid": "11990170", "title": "", "text": "Hanke’s emotional state. See Restatement (Second) of Torts § 46, Comment i; § 500. Thus, viewing the record most favorably to the plaintiff, Global’s misrepresentations to Ms. Hanke, to a newspaper, and to a United States governmental agency on several occasions, displayed such crass indifference to the rights of the public which ships household goods and personal effects by a motor transport common carrier that a recitation of these facts might well lead an average person to exclaim “outrageous” in characterizing the defendant’s conduct. Comment h under § 46 provides as follows: It is for the court to determine, in the first instance, whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability. We believe that the facts of this case as alleged by appellant and supported by evidence opposing summary judgment are such that reasonable men might differ as to whether they demonstrate liability under § 46. Therefore, we conclude that Global has not demonstrated its right to prevail as a matter of law and the summary judgment was erroneous. Ms. Hanke advances an alternative theory of liability for the unintended infliction of emotional distress under § 313 of the Restatement (Second) of Torts. Again, all parties in the district court appear to have assumed that § 313 states the law of North Dakota. That section provides as follows: (1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor (a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and (b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm. Comment 1(c)," }, { "docid": "10381371", "title": "", "text": "defendant’s alleged conduct does not rise to the level of extreme and outrageous conduct. At most, the alleged conduct establishes that Johnson was an at-will employee who was terminated because his direct supervisor believed his performance was unsatisfactory. While the methods by which Johnson’s performance was reviewed and by which he was eventually terminated may not have been ideal employment practices, they do not constitute “extreme and outrageous” conduct. We therefore dismiss the seventh count of plaintiffs’ complaint. 6. Negligent Infliction of Emotional Distress The eighth count of plaintiffs’ complaint alleges negligent infliction of emotional distress. To prove such a claim, plaintiffs must establish that the defendant “knew or should have known that its conduct involved an unreasonable risk of causing emotional distress, and that the distress, if it were caused, might result in illness or bodily harm.” Buckman v. People Express, Inc., 205 Conn. 166, 173, 530 A.2d 596, 600 (1987). Plaintiffs have not set forth sufficient facts to establish that defendant created an unreasonable risk of causing emotional distress. Additionally, plaintiffs have failed to allege or prove that the alleged emotional distress might result in illness or bodily harm. See Morris v. Hartford Courant Co., 200 Conn. 676, 682-83, 513 A.2d 66, 69-70 (1986). We therefore dismiss the eighth count of plaintiffs’ complaint. 7. Loss of Consortmm The first five counts of plaintiffs’ complaint include loss of consortium claims. Because we dismiss the underlying tort claims, we also dismiss the loss of consortium claims. See Hopson v. St. Mary’s Hospital, 176 Conn. 485, 408 A.2d 260 (1979). CONCLUSION For the foregoing reasons, defendant’s motion for summary judgment (Document # 65) is GRANTED. The clerk will enter judgment for the defendant. SO ORDERED. . While plaintiffs assert most possible attacks on the employment-at-will doctrine, they do not allege any federal employment discrimination claims since Johnson's age, sex, race, etc. apparently do not qualify for any of these. . Defendant maintains that there were no misrepresentations. We need not resolve that issue, which may involve triable issues of fact. If plaintiffs were alleging injuries resulting from Johnson's acceptance of the" }, { "docid": "17087398", "title": "", "text": "OPINION GOETTEL, District Judge. This lawsuit arises out of the termination of plaintiffs employment by defendant Carrier Corporation. In what is becoming an ever-increasing trend in wrongful termination cases (at least in this district), plaintiffs counsel initially pled the usual “laundry list” of discrimination claims and collateral torts. Four counts eventually went to trial by jury. At the close of the plaintiffs case, the defendants moved for judgment as a matter of law. The Court reserved ruling at that time. At the conclusion of all of the evidence, the Court granted judgment as a matter of law in part and submitted two causes of action to the jury. The jury returned a verdict for the plaintiff on one of those counts, negligent infliction of emotional distress, and awarded the plaintiff $400,000 in damages against Carrier Corporation. Defendant Carrier now moves for judgment as a matter of law following the jury’s verdict on one count. FACTS Briefly stated the factual background of this ease is that the plaintiff, Rajiv Malik, was employed by the defendant Carrier Corporation in its Leadership Associates Program. The program, which was composed of persons with Masters of Business Administration (MBA) degrees from outstanding business schools, was designed to attract and develop the company’s future leaders. It was a two-year rotational program, at the conclusion of which the participants were expected to obtain suitable positions somewhere within the company (“the final placement”). The plaintiff had a written employment contract which stated that he was an employee at will and could be released with reasonable notice. During his first year-and-a-half in the program, the plaintiff had a rather mediocre career compared to the rest of the exceptional group in the program. At that point he encountered some difficulties concerning allegations by a female co-worker of sexual harassment. This led to an extensive investigation of the events, which did not reach any determinative conclusion but which did, based on the plaintiff’s own admissions, result in the issuance of a letter to his personnel file stating that he had engaged in unacceptable conduct. This development, along with the plaintiff’s difficulties" }, { "docid": "11990171", "title": "", "text": "supported by evidence opposing summary judgment are such that reasonable men might differ as to whether they demonstrate liability under § 46. Therefore, we conclude that Global has not demonstrated its right to prevail as a matter of law and the summary judgment was erroneous. Ms. Hanke advances an alternative theory of liability for the unintended infliction of emotional distress under § 313 of the Restatement (Second) of Torts. Again, all parties in the district court appear to have assumed that § 313 states the law of North Dakota. That section provides as follows: (1) If the actor unintentionally causes emotional distress to another, he is subject to liability to the other for resulting illness or bodily harm if the actor (a) should have realized that his conduct involved an unreasonable risk of causing the distress, otherwise than by knowledge of the harm or peril of a third person, and (b) from facts known to him should have realized that the distress, if it were caused, might result in illness or bodily harm. Comment 1(c), in part, reads as follows: On the other hand, one who unintentionally but negligently subjects another to such an emotional distress does not take the risk of any exceptional physical sensitiveness to emotion which the other may have unless the circumstances known to the actor should apprise him of it. Thus, one who negligently drives an automobile through a city street in a manner likely merely to startle a pedestrian on a side walk, is not required to take into account the possibility that the latter may be so constituted that the slight mental disurbance [sic] will bring about an illness. In order to establish liability under this theory, Ms. Hanke must establish that Global knew or should have known that she was so deeply concerned about the failure to deliver her furniture and that continued misrepresentations which would generate continued expectations of immediate delivery, coupled with the delay which Global knew to be inevitable, created an unreasonable risk that Ms. Hanke could suffer great emotional distress resulting in illness and that this in fact" }, { "docid": "3116341", "title": "", "text": "caused by the physical, touchings. See Conn.Gen.Stat. § 31 — 275(16)(B)(ii). Therefore, the Court declines to apply Driscoll to bar plaintiffs claim for negligent supervision based upon the facts alleged in his amended complaint. Accordingly, we deny defendant’s motion to dismiss plaintiffs negligent supervision claim in count three, but grant defendant’s motion to dismiss the negligent hiring claim. II. Count TV — Negligent Infliction of Emotional Distress In count four, plaintiff alleges that defendant negligently inflicted emotional distress on him by failing to become aware of the conduct of his supervisor and preventing such conduct. (Pl.’s Compl. ¶¶ 60-64.) Defendant relies on the Connecticut Supreme Court’s holding in Parsons v. United Technologies Corp., 243 Conn. 66, 88, 700 A.2d 656 (1997), which held that a claim for negligent infliction of emotional distress in the employment context arises only when it is based on unreasonable conduct of the defendant in the termination process, and argues that since plaintiff was never terminated, this claim must be dismissed. We agree. This Court has consistently held in employment cases that a state-law claim for negligent infliction of emotional distress arises only in the context of a termination. See, e.g., Gomez-Gil v. University of Hartford, 63 F.Supp.2d 191, 193 (D.Conn.1999); Cameron v. St. Francis Hosp. & Med. Ctr., 56 F.Supp.2d 235, 240 (D.Conn.1999); Williams v. H.N.S. Mgmt. Co., 56 F.Supp.2d 215, 221 (D.Conn.1999); Perillo v. Perkin-Elmer Corp., No. 3:97CV513(AHN), 1998 WL 846737, at *3 (D.Conn. Dec.3, 1998); Cowen v. Federal Express, 25 F.Supp.2d 33, 40 (D.Conn.1998); White v. Martin, 23 F.Supp.2d 203, 208 (D.Conn.1998), aff'd, 198 F.3d 235, 1999 WL 973622 (2d Cir.1999); see also Pavliscak v. Bridgeport Hosp., 48 Conn. App. 580, 711 A.2d 747, cert. denied, 245 Conn. 911, 718 A.2d 17 (1998). However, we would be remiss in failing to note that the Second Circuit, in dictum, has expressed doubt as to whether the Connecticut Supreme Court would continue to limit the tort of negligent infliction of emotional distress to actions taken in the course of an employee’s termination. Malik v. Carrier Corp., 202 F.3d 97, 103-04 n. 1 (2d Cir.2000). Our" }, { "docid": "4451154", "title": "", "text": "F.3d 460, 471 (5th Cir.2006) (applying St. Amant to analysis of 15 U.S.C. 1681h(e)). In the present case, the record contains no evidence indicating that either Verifications or NESC “entertained serious doubts as to the truth” of their reports until well after the reports were furnished. St. Amant, 390 U.S. at 731, 88 S.Ct. 1323. To the contrary, the fact that both defendants acted with haste in reinvestigating and correcting their reports after the inaccuracies came to light tends to show that, had they “entertained serious doubts” about the accuracy of the reports earlier, they would have undertaken further investigative measures at such time. For the purposes of section 1681h(e), Adams has failed to present any evidence that the defendants furnished false information with malice or a willful intent to injure. As a result, Counts Nine, Ten, Twelve, and Thirteen are barred by 15 U.S.C. 1681h(e). Therefore, the defendants’ Motions for Summary Judgment are granted as to those claims. 1. IIED Claim Against NESC In Count Eight of her Complaint, Adams alleges that NESC intentionally inflicted emotional distress upon her. In her Memorandum in Opposition to NESC’s Motion for Summary Judgment, however, Adams states that she “does not contest summary judgment in favor of [NESC] with respect to Count Eight of Plaintiffs Complaint.” Mem. in Opp., Doc. No. 82, at fn. 1. Consequently, NESC’s Motion for Summary Judgment is granted as to Count Eight, Adams’ IIED claim against NESC. 2. NIED Claims Against NESC and Verifications In Counts Seven and Eleven, Adams alleges that NESC and Verifications, respectively, are liable for negligent infliction of emotional distress. NESC and Verifications have moved for summary judgment on these claims. To prevail on a claim of negligent infliction of emotional distress under Connecticut law, a plaintiff must show that: “(1) the defendant’s conduct created an unreasonable risk of causing the plaintiff emotional distress; (2) the plaintiffs distress was foreseeable; (3) the emotional distress was severe enough that it might result in illness or bodily harm; and (4) the defendant’s conduct was the cause of the plaintiffs distress.” Carrol v. Allstate Ins. Co., 262" }, { "docid": "17087402", "title": "", "text": "the plaintiff’s defamation claim against Carrier and his tortious interference claim against Kramer. This eliminated Regina Kramer as a defendant in the ease. The Court then submitted the negligent misrepresentation and negligent infliction of emotional distress claims to the jury, while reserving final decision on the defendant’s motion as to those counts. As noted earlier, the jury found in favor of defendant Carrier on the negligent misrepresentation claim and for the plaintiff on the negligent infliction of emotional distress claim, awarding compensatory damages in the amount of $400,000. On October 20, 1997, defendant Carrier formally renewed its motion for judgment as a matter of law pursuant to Rule 50(b), Fed. R.Civ.P., and filed a supplemental Memorandum of Law in support thereof. (A separate motion for a new trial or a remittitur has recently been filed). RULE 50(b) STANDARD A judgment as a matter of law will be entered only where there is no evidentiary basis for a reasonable jury to find for the prevailing party. A district court may grant a motion for judgment as a matter of law only if there exists “such complete absence of evidence supporting the verdict that the jury’s findings could only have been the result of sheer surmise and conjecture,” or the evidence in favor of the movant is so overwhelming “that reasonable and fair minded [persons] could not arrive at a verdict against [it].” Luciano v. The Olsten Corporation, 110 F.3d 210, 214 (2d Cir.1997) (quoting Cruz v. Local Union No. 3, 34 F.3d 1148, 1154 (2d Cir.1994)); Song v. Ives Laboratories, Inc., 957 F.2d 1041, 1046 (2d Cir.1992). The trial court must view the evidence in the light most favorable to the non-moving party, who must be given the benefit of all reasonable inferences that the jury might have drawn in his favor. Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir.1988); Samuels v. Air Transport Local 504, 992 F.2d 12, 14 (2d Cir.1993). The court “cannot assess the weight of conflicting evidence, pass on the credibility of the witnesses, or substitute its judgment for that of the jury.”" }, { "docid": "12535689", "title": "", "text": "Connecticut Supreme Court did not discuss whether negligent infliction of emotional distress was actionable outside the termination context. In Malik v. Carrier Corp., 202 F.3d 97, 103 (2d Cir.2000), the Second Circuit considered Parsons and held that claims for negligent infliction of emotional distress brought under Connecticut law are not limited to unreasonable conduct in the termination process. This holding was based in part on dicta in Parsons that stated that “few courts have addressed the requirements of a claim for [emotional distress] within the employment relationship as a whole, much less in the context of the termination of such a relationship.” Id. 0quoting Parsons, 243 Conn. at 89, 700 A.2d 655); accord Karanda v. Pratt & Whitney Aircraft, No. CV-98-582025S, 1999 WL 329703, at *5 (Conn.Super.Ct. May 10, 1999) (holding that the Connecticut Supreme Court “would permit a negligent infliction of emotional distress claim against an employer when no termination is alleged.”). Fleet’s argument that the negligent infliction of emotional distress claim must pertain to the termination process thus fails under Malik. Fleet also contends that it is entitled to summary judgment on the negligent infliction of emotional distress claim because as a matter of law plaintiff cannot establish that its conduct was unreasonable. Under Connecticut law, plaintiff has the burden of proving that the defendant knew or should have known that its conduct carried an “unreasonable risk of causing emotional distress and that distress, if it were caused, might result in illness or bodily harm.” Parsons, 243 Conn. at 88, 700 A.2d 655 (citations and internal quotation marks omitted). Fleet’s motion for summary judgment as to this claim rests almost entirely on its contention that “Fleet has established the Faragher/Ellerth defense to the Title VII claims, and, accordingly, the conduct that forms the basis of the Title VII claims cannot also form the basis of a viable negligent infliction of emotional distress claim.” Fleet does not, however, cite any cases in support of its contention that the Title VII affirmative defense is also a defense to a common law negligent infliction claim based on respondeat superior. The Court" } ]

[ { "docid": "22388493", "title": "", "text": "405(g), 1388(c)(3); see also Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir.1989). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson, 402 U.S. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In applying the substantial evidence standard, we scrutinize the record to determine whether such evidence is present. Haywood, 888 F.2d at 1466. We may not reweigh the evidence, try the issues de novo, or substitute our judgment for that of the Secretary. Id. The law and regulations governing the determination of disability are the same for both disability insurance benefits and SSI. Id. at 1467. Disability under the Act is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to ... last for a continuous period of not less than twelve months_” 42 U.S.C. § 423(d)(1)(A). Under this provision, a “physical or mental impairment” is defined as “an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). Furthermore, an individual is “under a disability, only if his impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy_” Id. § 423(d)(2)(A). In determining whether a claimant is disabled, the Secretary utilizes a five-step sequential evaluation: (1) An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of medical findings. (2) An individual who does not have a “severe impairment” will not be found to be disabled. (3) An individual who meets or equals a listed impairment in Appendix 1 of the regulations will be considered disabled without the consideration of vocational" } ]

[ { "docid": "10935379", "title": "", "text": "some $59 million in SSDI benefits; by 1982 more than four million workers and beneficiaries drew an estimated $18.5 billion in SSDI and SSI funds. See S.Rep. No. 97-648, 97th Cong., 2d Sess. 13-16, reprinted in 1982 U.S.Code Cong. & Ad.News 4373, 4384-87. Under both the SSDI and SSI programs, disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Secretary promulgates regulations governing determination of eligibility for disability payments. 20 C.F.R. pt. 404, subpt. P; 20 C.F.R. pt. 416, subpt. I. These complex regulations implement the broad congressional directive expressed in 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B), which requires that an individual “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience, engage in any other kind of substantial gainful work which exists in the national economy”. Under 42 U.S.C. §§ 421 and 1383b, state agencies conduct disability determinations pursuant to contracts with the Secretary; BDD, a unit of the Ohio Rehabilitative Services Commission, makes all determinations of initial and continuing disability in the State of Ohio. 2. The Implementing Regulations and the Five-Step Evaluation The regulations create a five-step “sequential evaluation” process for evaluating benefits claims by applicants and recipients. The first step disqualifies individuals who are engaged in “substantial gainful activity”. 20 C.F.R. §§ 404.1520(a), 416.-920(a). Claimants who pass this barrier must then demonstrate that their impairment is severe; if it is not, benefits may not be issued. §§ 404.1520(c), 416.920(c). If the individual meets or equals a disability described in the “Listing of Impairments”, he or she is presumed disabled and automatically receives benefits. §§ 404.-1520(d), 416.920(d); see subpt. P, app. 1 (list of conditions, signs, symptoms). An individual with a severe impairment that does not meet or equal any" }, { "docid": "3079310", "title": "", "text": "directors and employees, social workers, employees of the Chicago regional and central SSA offices, and others. The Court’s Findings of Fact and Conclusions of Law are set forth in six numbered topics (I-VI) hereafter. FINDINGS OF FACT, I. STATUTORY AND REGULATORY FRAMEWORK 1. The federal Social Security Disability Insurance program (Title II of the Social Security Act) provides insurance benefits for those persons who have contributed to the program and who suffer from a physical or mental disability, defined by statute as “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The statute provides that a mental or physical impairment is considered disabling if it is “of such severity that [the applicant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). In order to be found disabled, a person must suffer from a medical impairment and be unable to work because of that impairment. 2. In addition to the Social Security Disability Insurance program, the federal government provides benefits for indigent, disabled individuals pursuant to a program known as Supplemental Security Income (SSI) for the aged, blind and disabled (Title XVI of the Social Security Act). The statutory standards for disability determinations under SSI are identical to those for Social Security Disability Insurance determinations. 42 U.S.C. § 1382c(a)(3)(A). 3. The Secretary of Health and Human Services (the Secretary) has promulgated regulations governing determination of eligibility for Social Security Disability Insurance and for SSI disability payments. 20 C.F.R. Part 404, Subpart P; 20 C.F.R. Part 416, Subpart I. The standards for disability determinations under both programs are substantially identical. 4. The regulations require that a five-part sequential evaluation process be used to evaluate disability claims. The first step requires the Secretary to disqualify from benefits an individual who is working at substantial gainful activity." }, { "docid": "14150313", "title": "", "text": "system. To understand what happened and why we must describe how the system is designed and why it failed. I. Facts A. Statute and Regulations The federal government provides disabled persons benefits through the Social Security Disability Insurance Program (SSD) and the Supplemental Security Income Program (SSI). Under both statutes, “disability” is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a 'continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). By regulation the Secretary has adopted a five-step “sequential evaluation” process to determine whether individuals — both applicants and recipients — are eligible for benefits. The process is essentially the same for both SSD and SSI claimants. At the first step, if the person is presently engaged in substantial gainful activity, he or she is disqualified from receiving benefits. 20 C.F.R. §§ 404.1520(a), 416.-920(a). At the second step, the Secretary must determine whether the claimant’s condition is severe. If not, benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). If the impairment is severe, the Secretary as a third step determines whether or not the applicant meets or equals the listings of impairments set forth in the Social Security regulations. 20 C.F.R. §§ 404.-1520(d), 416.920(d). The listings contain per se disabling impairments. If a person meets or equals the listings, he or she is entitled to benefits. If the claimant does not meet or equal the» listings, the fourth step requires an assessment of the individual’s residual functional capacity (RFC) and a determination of whether that capacity enables the individual to meet" }, { "docid": "23381164", "title": "", "text": "oral argument we were informed by the parties that following Mrs. Kuzmin’s reapplication, the Secretary again determined that Mrs. Kuzmin was disabled and entitled to SSI benefits, apparently retroactive to July 1982. Thus, the situation is that as to appellant who claims disability based on chronic physical impairments, on September 13, 1979, the Secretary found Mrs. Kuzmin disabled as of March 1979; in the decision on appeal the Secretary found that her disability ceased in October 1980; and in the most recent proceeding, the Secretary has again found that she is disabled, this time as of July 1982. This appeal concerns only the closed benefit period between January 1981 and July 1982, but it raises an important legal issue as to the standard to be applied when disability termination is at-issue. II. DISCUSSION Disability is defined both for purposes of disability insurance and SSI benefits as the inability “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than six months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A) (1976). A person is disabled within the meaning of these provisions “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B) (1976). Courts in reviewing final determinations by the Secretary following an administrative hearing are bound by the Secretary’s findings of fact if they are supported by “substantial evidence.” 42 U.S.C. §§ 405(g); 1383(c)(3) (1976). “Substantial evidence” has been defined to mean “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83" }, { "docid": "22096668", "title": "", "text": "the basis for the decision. Garner now appeals to this Court. II. ANALYSIS Analysis of Garner’s eligibility for disability insurance and SSI benefits involves a number of common issues. To qualify for an award of disability insurance benefits, Garner must be (a) insured for disability insurance benefits, and (b) disabled. See 42 U.S.C. § 423(a)(l)(A, D). To qualify for an award of SSI benefits, Garner must be (a) meet certain income requirements, and (b) be disabled. See 42 U.S.C. § 1382(a). As Garner’s eligibility for benefits under both programs turns on the requirement that he be disabled, we begin our analysis by considering whether Garner is disabled. We will then consider whether he meets the other requirements for an award of benefits under the two programs. A. Disability. The Social Security Act defines disability as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or which can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A), 42 U.S.C. § 1382c(a)(3)(A). A person is unable to engage in any substantial gainful activity only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. 42 U.S.C. § 423(d)(2)(A), 42 U.S.C. § 1382c(a)(3)(B). Under these statutes, and the regulations promulgated pursuant to these statutes, a claim of disability must be considered pursuant to the following seven-step analysis: 1. Is the claimant currently engaged in substantial gainful activity? If yes, the claimant is not disabled. If no, proceed to Step 2. See 20 C.F.R. § 404.1520(b); 20 C.F.R. § 416.920(b). 2. Does" }, { "docid": "22857437", "title": "", "text": "appealed this decision to the United States District Court for the Western District of Michigan. In a memorandum opinion issued March 23, 1989, the court granted the defendant’s motion for summary judgment, finding that substantial evidence supported the conclusion of the Secretary. From this decision Abbott now appeals. II. Pursuant to 42 U.S.C. § 405(g), we review the final decision of the Secretary for compliance with applicable legal criteria and to determine whether substantial evidence exists on the record to support each necessary finding. Blankenship v. Bowen, 874 F.2d 1116, 1120 (6th Cir.1989); McCormick v. Secretary of Health and Human Services, 861 F.2d 998, 1001 (6th Cir.1988). Substantial evidence is defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). A finding of substantial evidence must be “based on the record as a whole” and must “take into account whatever in the record fairly detracts from its weight.” Garner v. Heckler, 745 F.2d 383, 388 (6th Cir.1984) (quoting Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir.1978)). Where the Appeals Council has reviewed the decision of an AU, the determination of the Council becomes the final decision of the Secretary for purposes of our review. Mullen v. Bowen, 800 F.2d 535, 538 (6th Cir.1986) (en banc). A. Determination of Disability Under the Regulations Supplemental security income benefits and disability insurance benefits are available only to those individuals who can establish “disability” within the terms of the Social Security Act. 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). The Act defines “disability” as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.... 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). Congress delineated four factors that the Secretary must consider in determining whether the claimant is capable of performing substantial gainful" }, { "docid": "10936688", "title": "", "text": "the plaintiffs’ motion for summary judgment is granted and the Secretary’s cross-motion is denied. I. THE CHALLENGED REGULATIONS AND THE ACT Plaintiffs challenge the above regulations on two grounds: (1) 404.1520(c) and 416.920(c) do not consider vocational factors (age, education, and work experience) and residual functional capacities; and (2) 404.1522, 416.922, and SSR 82-55 do not combine “nonsevere” impairments. Before proceeding to consider the validity of these regulations, an overview of the regulations and the Act is helpful. The OASDI and SSI programs provide for the payment of benefits to disabled persons. Under both programs, a person is considered disabled if he or she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months... 42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A). The Act provides that “for purposes of” applying this definition, an individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy____ 42 U.S.C. §§ 423(d)(2)(A) & 1382c(a)(3)(B). The Secretary is authorized to establish rules and regulations, consistent with the Act, governing the determination of disability claims. 42 U.S.C. §§ 405(a) & 1383(d)(1). Pursuant to this authority, the Secretary established a five-step sequential procedure for determining whether a claimant is disabled. 20 C.F.R. §§ 404.1520, 416.920 (1983). Under the existing regulations, if the claimant is found not to be disabled under any one of the sequential tests, the analysis ends and the remaining steps of the analysis are not completed. See §§ 404.1520(a), 416.920(a). As the first step, the Secretary ascertains whether the claimant is working; if so, a finding of “not disabled” follows. In the second step, the Secretary determines, solely on the basis of medical" }, { "docid": "4237812", "title": "", "text": "of the Commissioner’s final decision is limited. The Act at 42 U.S.C. § 405(g) establishes that the Commissioner’s findings as to any fact are conclusive if they are supported by substantial evidence. See also Brewer v. Chater, 103 F.3d 1384, 1390 (7th Cir.1997). “Substantial evidence” means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Brewer, 103 F.3d at 1390. The court may not reevaluate the facts, reweigh the evidence, or substitute its own judgment for that of the Commissioner. See Brewer, 103 F.3d at 1390. Conclusions of law, however, are not entitled to deference. Thus, if the Commissioner commits an error of law, reversal is required without regard to the volume of evidence in support of the factual findings. See Binion v. Chater, 108 F.3d 780, 782 (7th Cir.1997). II. STATUTORY AND REGULATORY FRAMEWORK To receive disability benefits, SSI and DIB claimants must be “disabled” as defined by the Act. See 42 U.S.C. § 423(a)(1)(D); 42 U.S.C § 1382(a); Pope v. Shalala, 998 F.2d 473, 477 (7th Cir.1993). An individual is “disabled” if he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” See 42 U.S.C. § 423(d)(1)(A); 20 C.F.R. § 404.1505(a). See also Jones v. Shalala, 10 F.3d 522, 523-24 (7th Cir.1993). To satisfy this definition, an individual must have a severe impairment that renders him unable to do his previous work or any other substantial gainful activity that exists in the national economy. See 20 C.F.R. § 404.1505(a). The Social Security regulations delineate a five-step process for determining whether a claimant is disabled within the meaning of the Act. See 20 C.F.R. § 404.1520. The ALJ first considers whether the claimant is presently employed or “engaged in substantial gainful activity.” 20 C.F.R § 404.1520(b). If he is, the" }, { "docid": "22857438", "title": "", "text": "383, 388 (6th Cir.1984) (quoting Beavers v. Secretary of Health, Education and Welfare, 577 F.2d 383, 387 (6th Cir.1978)). Where the Appeals Council has reviewed the decision of an AU, the determination of the Council becomes the final decision of the Secretary for purposes of our review. Mullen v. Bowen, 800 F.2d 535, 538 (6th Cir.1986) (en banc). A. Determination of Disability Under the Regulations Supplemental security income benefits and disability insurance benefits are available only to those individuals who can establish “disability” within the terms of the Social Security Act. 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). The Act defines “disability” as the inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.... 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). Congress delineated four factors that the Secretary must consider in determining whether the claimant is capable of performing substantial gainful activity: the individual’s age, his education, his job experience, and his functional capacity to work. See 42 U.S.C. §§ 423(d)(2)(B) and 1382c(a)(3)(B). The Regulations promulgated by the Secretary to administer benefit payments require that a five-step sequential process be followed in evaluating all claims of mental or physical disability. 20 C.F.R. §§ 404.-1520 and 416.920. First, the claimant must establish that he is not engaged in substantial gainful activity at the time he seeks benefits. 20 C.F.R. §§ 404.1520(b) and 416.920(b). Second, the individual must show that he has a severe impairment”; that is, an impairment or combination of impairments which “significantly limits ... physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c) and 416.920(c); see Farris v. Secretary of Health & Human Services, 773 F.2d 85, 89-90 (6th Cir.1985). A claimant who has been determined to suffer from a severe impairment proceeds to the third step of the process in which the Secretary must determine whether the medical evidence alone establishes the claimant’s inability to engage in substantial gainful activity." }, { "docid": "3620910", "title": "", "text": "ENDORSEMENT ORDER THOMPSON, District Judge. Upon review and pursuant to 28 U.S.C. § 636(b) and Rule 2 of the Local Rules for United States Magistrate Judges (D.Conn.), Magistrate Judge Martinez’s Recommended Ruling granting the plaintiffs motion for summary judgment and denying defendant’s motion for order affirming the decision of the Commissioner is hereby ACCEPTED. SO ORDERED. RECOMMENDED RULING MARTINEZ, United States Magistrate Judge. Pending before this court are the plaintiffs Motion for Summary Judgment (doc. # 7) and the Defendant’s Motion for Order Affirming the Decision of the Commissioner (doc. # 9). The gravamen of the plaintiffs motion is that his case should be remanded in light of new evidence which supports his claim that he is disabled. The Commissioner, on the other hand, maintains that the new evidence should not be considered and that the ALJ’s decision denying the plaintiffs application for disability benefits is supported by substantial evidence. The undersigned recommends that the plaintiffs motion (doc. # 7) be GRANTED and the defendant’s motion (doc. # 9) be DENIED. I. STATUTORY FRAMEWORK Under the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. See 42 U.S.C. § 423(a)(l.). “Disability” is defined as an “inability to- engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1), 1382c(a)(3.) Determining whether a claimant is disabled requires a five-step process. See 20 C.F.R. § 404.1520. First, the court must determine whether the claimant is currently employed. See 20 C.F.R. § 404.1520(b), 404.1572(b). If the claimant is currently employed, the claim is disallowed. See 20 C.F.R. § 404.1520(b). If the claimant is not working, as a second step, the agency must make a finding as to the existence of a severe mental or physical impairment; if none exists, the claim is denied. See 20 C.F.R. 404.1520(c). Once the claimant is found to have a severe impairment, the third" }, { "docid": "22422811", "title": "", "text": "the remaining claims for lack of jurisdiction in an Order entered in October 1995. Because of the court’s disposition of the jurisdictional issue, it never ruled upon class certification. Plaintiffs allege that they should have been considered for benefits under two similar programs administered by the Social Security Administration (SSA). The Social Security Disability Insurance program (SSDI) pays benefits to persons who have contributed to the program and who are determined to be “disabled” due to a physical and/or mental impairment. Title II, Social Security Act, 49 Stat. 622, as amended. 42 U.S.C. § 401 et seq. The Supplemental Security Income program (SSI) extends such benefits to indigent disabled persons. Title XVI, Social Security Act, 86 Stat. 1465, as amended, 42 U.S.C. § 1381 et seq. Both Titles define “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of less than 12 months....” 42 U.S.C. §§ 423(d)(1)(A), 1382e(a)(3)(A). Under express statutory authority, 42 U.S.C. § 405(a), the Commissioner has promulgated detailed regulations governing eligibility for SSDI and SSI benefits. 20 C.F.R. Part 404, Subpart P (SSDI); 20 C.F.R. Part 416, Subpart I(SSI). Both programs follow the same five-step “sequential evaluation” process to determine whether a claimant is disabled. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c; compare also 20 C.F.R. § 404.1520 with 20 C.F.R. § 416.920. The disability examiner determines first, whether the claimant is engaged in “substantial gainful activity.” If not, the examiner decides second whether the claimant’s condition or impairment is “severe,” i.e., whether it significantly limits claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(e), 416.920(c). If so, the examiner decides at the third step whether the claimant’s impairment meets or equals the severity of the specified impairments acknowledged by SSA to be of sufficient severity to preclude any gainful work activity (the “Listings”), Subpart P, Appendix 1 of the Regulations, 20 C.F.R. §§ 404.1520(d)," }, { "docid": "23381165", "title": "", "text": "has lasted or can be expected to last for a continuous period of not less than six months.” 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A) (1976). A person is disabled within the meaning of these provisions “only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A); 1382c(a)(3)(B) (1976). Courts in reviewing final determinations by the Secretary following an administrative hearing are bound by the Secretary’s findings of fact if they are supported by “substantial evidence.” 42 U.S.C. §§ 405(g); 1383(c)(3) (1976). “Substantial evidence” has been defined to mean “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ ” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). The Secretary argues here that a finding that a disability has ceased is essentially like an initial finding of no disability. Appellant Kuzmin, on the other hand, contends that a termination of benefits premised on the medical basis of a disability finding, such as here, should focus on whether the claimant’s impairments have improved to the point of nondisability. Both parties agree that the ultimate inquiry is whether an individual’s impairments prevent the claimant from engaging in substantial gainful activity and that a reviewing court must inquire whether the Secretary’s finding is supported by substantial evidence. The difference between the parties relates to what, if any, effect must be given to the Secretary’s earlier determination of disability. Thé statutory language sheds no helpful light on this issue. The Act merely provides that payment of SSI benefits by reason of disability to an individual “who ceases ... to be under such disability, shall continue ... through the second month following the month in which such ... disability ceases.” 42 U.S.C. § 1383(a)(5) (1976)." }, { "docid": "18841566", "title": "", "text": "denies him due process and equal protection of the laws under the United States Constitution. A. OVERVIEW. The Social Security Act (“Act”), as amended, 42 U.S.C. § 301 et seq., provides for the payment of benefits to disabled persons. Title II of the Act governs the payment of Old-Age, Survivors, and Disability Insurance (“OASDI”) benefits to disabled persons who have contributed to the Social Security program. 42 U.S.C. § 401 et seq. Title XVI of the Act, the title under which Dotson filed his application for benefits, provides for the payment of Supplemental Security Income (“SSI”) benefits to disabled persons who are indigent. 42 U.S.C. § 1382 et seq.; see generally Bowen v. Yuekert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290, 96 L.Ed.2d 119 (1987). Both Titles II and XVI define disability as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months....” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). Pursuant to statutory authority, the Secretary has promulgated regulations establishing a five-step sequential analysis for determining whether an SSI claimant is disabled. See 20 C.F.R. § 416.920; Sullivan v. Zebley, 493 U.S. 521, 525, 110 S.Ct. 885, 888, 107 L.Ed.2d 967 (1990). The first step of the process, and the only one relevant for purposes of this appeal, requires the Secretary to determine whether the claimant is engaging in SGA. See 20 C.F.R. § 416.-920(a). A finding of SGA means that the claimant is ineligible for SSI benefits. Id. at § 416.920(b); Yuekert, 482 U.S. at 140, 107 S.Ct. at 2290. In this case, because the ALJ found that Dotson’s stealing and panhandling-constituted SGA, he denied Dotson’s claim for benefits without moving to the next step in the sequential analysis. B. ILLEGAL ACTIVITY AS SGA. Our research reveals that we are the first appellate court to address the issue of whether illegal activity can support a finding of SGA. The handful of federal trial" }, { "docid": "13950236", "title": "", "text": "Id. at 325, 106 S.Ct. 2548. Once the moving party has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify specific facts that show a genuine issue for trial. See id. at 323-34, 106 S.Ct. 2548; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only genuine disputes — where the evidence is such that a reasonable jury could return a verdict for the nonmoving party — • over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. See Anderson v. Liberty Lobby, Inc., 477 U.S. at 248, 106 S.Ct. 2505; see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir.2001) (the nonmoving party must offer specific evidence from which a reasonable jury could return a verdict in its favor). B. Whether Plaintiff’s Condition Qualifies as a “Disability” under the FEHA 1. ADA Definition of “Disability ” Defendant argues that because Plaintiffs disability, which lasted from approximately June 2001 to early January 2002, was only temporary, Plaintiff did not suffer from a disability cognizable under the FEHA. Defendant urges the Court to determine whether Plaintiff had a “disability” by looking to ADA caselaw and regulations because “[t]here are not any published cases interpreting the FEHA that address whether or not a temporary condition can constitute a disability.” (Def. Reply at 1). Under the ADA, “disability” is defined as “a physical or mental impairment that substantially limits one or more of the major life activities of the individual.” 42 U.S.C. § 12102(2)(A) (emphasis added). The applicable federal regulations list three factors to be considered in determining whether an individual is substantially limited in a major life activity: “(i) The nature and severity of the impairment; (ii) The duration or expected duration of the impairment; and (iii) The permanent or long term impact, or the expected permanent or long term impact of or resulting from the impairment.” 29 C.F.R. § 1630.2(j)(2) (emphasis added). The Ninth Circuit has relied on this" }, { "docid": "14150312", "title": "", "text": "PARTIAL GLOSSARY 1. POM’s — SSA’s Program Operations Manual Systems 2. QED Form — SSA’s Psychiatric Review Form 3. RFC — Residual Functional Capacity 4. SSA — Social Security Administration 5. SSD — Social Security Disability 6. SSI — Supplemental Security Income 7. State ODD — New York State Office of Disability Determinations MEMORANDUM AND ORDER WEINSTEIN, Chief Judge: This case raises difficult issues respecting protection of the rights of claimants by the bureaucracy charged with dispensing social security disability and supplemental security income benefits. Courts assume that professionals such as doctors, lawyers and managers responsible for important government institutions will enforce the law with scrupulous impartiality and concern for the rights of their clients — here those claiming disability. That presumption of legality has been rebutted by evidence of denial of the rights of disabled persons acquiesced in by the professionals charged with assisting them. The result was particularly tragic in the instant case because of its devastating effect on thousands of mentally ill persons whose very disability prevented them from effectively confronting the system. To understand what happened and why we must describe how the system is designed and why it failed. I. Facts A. Statute and Regulations The federal government provides disabled persons benefits through the Social Security Disability Insurance Program (SSD) and the Supplemental Security Income Program (SSI). Under both statutes, “disability” is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a 'continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). An individual “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B). By regulation the Secretary has adopted" }, { "docid": "10935378", "title": "", "text": "Administrative Procedure Act, 5 U.S.C. § 702. In addition to moving to dismiss the State, the Secretary has challenged this Court’s subject matter jurisdiction over the class in a number of her pleadings. II. DISABILITY PAYMENTS UNDER THE SOCIAL SECURITY ACT: SSDI AND SSI A. Initial Determinations of Disability 1. The Programs The named plaintiffs and the proposed class members are all residents of Ohio who currently receive, or formerly received, benefits under Title II or Title XVI of the Social Security Act (“Act”). Title II provides Social Security Disability Insurance (“SSDI”) benefits to disabled workers based upon their earnings records. 42 U.S.C. §§ 401-431. Title XVI, the Supplemental Security Income (“SSI”) program, provides disability payments to the aged, blind, and disabled if they meet certain income eligibility standards. 42 U.S.C. §§ 1381-1383. Both programs were established to relieve state and local governments of the financial burden of assisting the disabled. SSDI was enacted in 1956 and SSI in 1972, and both programs expanded far beyond their sponsors’ expectations. In 1956 approximately 150,000 Americans drew some $59 million in SSDI benefits; by 1982 more than four million workers and beneficiaries drew an estimated $18.5 billion in SSDI and SSI funds. See S.Rep. No. 97-648, 97th Cong., 2d Sess. 13-16, reprinted in 1982 U.S.Code Cong. & Ad.News 4373, 4384-87. Under both the SSDI and SSI programs, disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). The Secretary promulgates regulations governing determination of eligibility for disability payments. 20 C.F.R. pt. 404, subpt. P; 20 C.F.R. pt. 416, subpt. I. These complex regulations implement the broad congressional directive expressed in 42 U.S.C. §§ 423(d)(2)(A) and 1382c(a)(3)(B), which requires that an individual “shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age," }, { "docid": "18915143", "title": "", "text": "calculation and payment of benefits. SO ORDERED. . This appeal is taken pursuant to § 1631(c)(3) of the Social Security Act, 42 U.S.C. § 1383(c)(3), which authorizes judicial review of determinations of the Commissioner of Social Security in accordance with 42 U.S.C. § 405(g). Both the plaintiff and the defendant have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. . The statutory definitions of disability are identical under both Title II Disability Insurance and Title XVI Supplemental Security Income (\"SSI\") Programs. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a)(3). Cases under 42 U.S.C. § 423 are cited interchangeably with cases under 42 U.S.C. § 1382c(a)(3). See Hankerson v. Harris, 636 F.2d 893, 895 n. 2 (2d Cir.1980). .The plaintiff does not dispute that March 31, 1984 was his date last insured. (See Pl.'s Mem. Of Law at 3 n. 1.) . \"Disability” is defined as follows. The law defines disability as the inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. To meet this definition, you must have a severe impairment, which makes you unable to do your previous work or any other substantial gainful activity which exists in the national economy. 20 C.F.R. § 404.1505(a). . Accordingly, references to the determinations and findings that are at issue in this appeal are referred to, interchangeably, as those of the ALJ and those of the Commissioner. . The Commissioner notes in passing that the Magistrate Judge appeared to have focused on SSI benefits rather that Social Security Disability Insurance Benefits. That is not a fair reading of the Report, and, as the Commissioner is aware, the definition of disability for Disability Insurance Benefits and SSI Benefits is the same. See supra note 3. . 20 C.F.R. §§ 404.1567(a) and 416.967(a) define sedentary work: (a) Sedentary work. Sedentary work involves lifting no more than 10" }, { "docid": "3620911", "title": "", "text": "the Social Security Act, every individual who is under a disability is entitled to disability insurance benefits. See 42 U.S.C. § 423(a)(l.). “Disability” is defined as an “inability to- engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1), 1382c(a)(3.) Determining whether a claimant is disabled requires a five-step process. See 20 C.F.R. § 404.1520. First, the court must determine whether the claimant is currently employed. See 20 C.F.R. § 404.1520(b), 404.1572(b). If the claimant is currently employed, the claim is disallowed. See 20 C.F.R. § 404.1520(b). If the claimant is not working, as a second step, the agency must make a finding as to the existence of a severe mental or physical impairment; if none exists, the claim is denied. See 20 C.F.R. 404.1520(c). Once the claimant is found to have a severe impairment, the third step is to compare the claimants impairment with those in-appendix 1 of the regulations (the “Listings”). See 20 C.F.R. § 404.1520(d); Bowen v. Yuckert, 482 U.S. 137, 141, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Balsamo v. Chater, 142 F.3d 75, 79-80 (2d Cir.1998). If the claimant’s impairment meets or equals one of the impairments in the Listings, the claimant is automatically considered disabled. See 20 C.F.R. § 404.1520(d); Balsamo v. Chater, 142 F.3d at 80. If the claimant’s impairment does not meet or equal one of the listed impairments, as a fourth step, he will have to show that he cannot perform his former work. See 20 C.F.R. § 404.1520(e). If the claimant cannot perform his former work, he must show, as a fifth and final step, that he is prevented from doing any other work. A claimant is entitled to receive disability benefits only if he cannot perform any alternate gainful employment. See 20 C.F.R. § 404.1520(f). The initial burden of establishing disability is on the claimant. See 42 U.S.C. §§ 423(d)(5), 1382c(a)(3)(G)." }, { "docid": "16617601", "title": "", "text": "MEMORANDUM OPINION COLLEEN KOLLAR-KOTELLY, District Judge. Plaintiff Anthony Blackmon brings this action seeking review of the final administrative decision by Defendant Michael J. Astrue, in his official capacity as Commissioner of Social Security, denying Plaintiffs claim for Disability Insurance Benefits (“DIB”) and Supplemental Security Income Benefits (“SSIB”) pursuant to 42 U.S.C. § 405(g). Pending before the Court are Plaintiffs Motion for Judgment of Reversal and Defendant’s Motion for Judgment of Affirmance. After reviewing the parties’ briefs, the administrative record, and the relevant case law, the Court shall DENY Plaintiffs [8] Motion for Judgment of Reversal and GRANT Defendant’s [11] Motion for Judgment of Affirmance, for the reasons that follow. I. BACKGROUND A. Legal Framework and Procedural History Plaintiff filed applications for DIB and SSIB pursuant to Titles II and XVI of the Social Security Act (the “Act”) on May 1, 2001. See PL Mot. for J. of Reversal (“Pl.’s Mot.”), at 1-2. To qualify for disability insurance benefits and supplemental security income (“SSI”), a claimant must demonstrate a disability, which is defined by the Act as an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or has lasted or can be expected to last for a continuous period of not less than 12 months.” See 42 U.S.C. § 416(i)(l); id. § 1382e(a)(3)(A). In addition, a claimant seeking disability or SSI benefits must have a severe impairment that makes him unable to perform past relevant work or any other substantial gainful work that exists in the national economy. See id. § 423(d)(2)(A); 20 C.F.R. § 404.1505(a). Substantial gainful work activity is work activity that involves doing significant physical or mental activities and is the kind of work that is usually done for pay or profit. See 20 C.F.R. § 404.1572. In making a disability determination, an Administrative Law Judge (“ALJ”) is required to use a five-step sequential analysis examining (1) the claimant’s recent work activity, (2) the severity and duration of the claimant’s impairments, (3) whether the claimant’s impairments are medically equivalent to" }, { "docid": "19670221", "title": "", "text": "pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Judgment on the pleadings may be granted under Rule 12(c) where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir.1988). If, after a review of the pleadings, the court is convinced that plaintiff can prove no set of facts in support of his claim which would entitle her to relief, judgment on the pleadings may be appropriate. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). II. Standard for Entitlement to Social Security Benefits Under the Social Security Act, a disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ...” 42 U.S.C. §§ 423(d)(1)(A) (concerning Old-Age, Survivors’, and Disability Insurance (“OASDI”)); 42 U.S.C. § 1382c(a)(3)(A) (2004) (concerning SSI payments). An individual will only be considered “under a disability” if her impairment is so severe that she is both unable to do her previous work and unable to engage in any other kind of substantial gainful work that exists in the national economy. §§ 423(d)(2)(A) and 1382c (a)(3)(B). “Substantial gainful work” is defined as “work that exists in significant numbers either in the region where the individual fives or in several regions of the country.” Id. Work may be considered “substantial” even if it is done on a part-time basis, if less money is earned, or if work responsibilities are lessened from previous employment. 20 C.F.R. § 404.1572(a) (OASDI); 20 C.F.R. § 416.972(a)(SSI). Work may be considered “gainful” if it is the kind of work usually done for pay or profit, whether or not a profit is realized. §§ 404.1572(b) and 416.972(b). Furthermore, “substantial gainful work” is considered available to an individual regardless of whether such work exists in" } ]

[ { "docid": "22663071", "title": "", "text": "obtain a warrant, and we will do the same. Accordingly, we have no occasion to consider the sort of emergency or dangerous situation, described in our cases as “exigent circumstances,” that would justify a warrantless entry into a home for the purpose of either arrest or search. Nor do these cases raise any question concerning the authority of the police, without either a search or arrest warrant, to enter a third party’s home to arrest a suspect. The police broke into Payton’s apartment intending to arrest Payton, and they arrested Riddick in his own dwelling. We also note that in neither case is it argued that the police lacked probable cause to believe that the suspect was at home when they entered. Finally, in both cases we are dealing with entries into homes made without the consent of any occupant. In Payton, the police used crowbars to break down the door and in Riddick, although his 3-year-old son answered the door,' the police entered before Riddick had an opportunity either to object or to consent. II It is familiar history that indiscriminate searches and seizures conducted under the authority of “general warrants” were the immediate evils that motivated the framing and adoption of the Fourth Amendment. Indeed, as originally proposed in the House of Representatives, the draft contained only one clause, which directly imposed limitations on the issuance of warrants, but imposed no express restrictions on warrantless searches or seizures. As it was ultimately adopted, however, the Amendment contained two separate clauses, the first protecting the basic right to be free from unreasonable searches and seizures and the second requiring that warrants be particular and supported by probable cause. The Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.’’ It is thus perfectly clear that the evil the Amendment was designed to prevent" } ]

[ { "docid": "2267156", "title": "", "text": "court sentenced George and Leek each to serve eighteen months of imprisonment to be followed by three years of supervised release. The same day, the district court sentenced Williams to serve fifteen months of imprisonment to be followed by three years of supervised release. Defendants specifically reserved their rights to appeal the denial of their suppression motions and now appeal this denial. II. ANALYSIS As the district court concluded, if the warrantless entry into the Bluegrass residence was unconstitutional, all subsequent evidence was obtained unlawfully because the subsequent searches and arrest warrants were based on evidence and information derived solely from Agent Henderson’s warrantless entry. Thus, our primary task is to assess whether the war-rantless entry into the Bluegrass residence was constitutional. A. Warrantless Entry into the Bluegrass Residence The district court held that the warrantless entry into the Bluegrass Residence was justified by exigent circumstances. Specifically, the district court found that Agent Henderson did not contravene the dictates of the Fourth Amendment when he accompanied, for her protection, “a very typical East Tennessee ‘country woman,’ who was insistent upon entering her residence ‘come hell or high water,’ ” to look for a water leak in the darkened residence. On appeal, Defendants claim there was no exigency to justify the entry and, therefore, the agents should have sought a warrant. When reviewing a district court’s decision to deny a motion.to suppress, we review the district court’s legal conclusions de novo and disturb its factual findings only if they are clearly erroneous. United States v. Bates, 84 F.3d 790, 794 (6th Cir.1996). The Fourth Amendment provides that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and par ticularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend IV. The “chief evil” against which the Fourth Amendment protects is the “physical entry of the home.” Payton v. New York, 445 U.S. 573, 585, 100" }, { "docid": "9730299", "title": "", "text": "Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. “[T]he rights of privacy and personal security protected by the Fourth Amendment ‘are to be regarded as of the very essence of constitutional liberty; and ... the guaranty of them is as important and as imperative as ... the guaranties of the other fundamental rights of the individual citizen.’ ” Harris v. United States, 331 U.S. 145, 150, 67 S.Ct. 1098, 91 L.Ed. 1399 (1947), overruled in part by Chimel v. California, 395 U.S. 752, 768, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969) (quoting Gouled v. United States, 255 U.S. 298, 304, 41 S.Ct. 261, 65 L.Ed. 647 (1921)). The Supreme Court has stated: “[Pjhysical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). The hallmark of the Fourth Amendment is reasonableness, and “[i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Supreme Court has instructed that, when assessing the reasonableness of a warrant-less search, a court must begin “with the basic rule that ‘searches 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.’ ” Arizona v. Gant, — U.S.-, 129 S.Ct. 1710, 1716, 173 L.Ed.2d 485 (2009) (citing Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967)); Payton v. New York, 445 U.S. at 586, 100 S.Ct. 1371. In most cases, the core requirement of Fourth Amendment reasonableness is a determination of probable cause by a neutral and detached magistrate, and a warrant “particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV. It" }, { "docid": "14206249", "title": "", "text": "conclusions is plenary. We turn, at the outset, to the language of the Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const. amend. IV. The warrant requirement guarantees our people the right of freedom from unwarranted government intrusion. Payton v. New York, 445 U.S. 573, 585-86, 100 S.Ct. 1371, 1379-80, 63 L.Ed.2d 639 (1980). It affords reasonable protection by permitting only a neutral and detached magistrate to review evidence and draw inferences to support the issuance of a search warrant. Johnson v. United States, 333 U.S. 10, 13-14, 68 S.Ct. 367, 368-69, 92 L.Ed. 436 (1948). Thus, a basic principle of Fourth Amendment law is that warrantless searches and seizures inside a home are presumptively unreasonable. Payton, 445 U.S. at 586, 100 S.Ct. at 1380. We proceed to the merits with these rules in mind. A. The Entry into the Apartment Building Defendants do not suggest that the arrest warrant was invalid. However, they do assert at the outset that the warrant did not authorize the entry into the apartment building to inquire about Santiago. Their argument is based upon the assertion that the hallway outside their apartment, in which they had an easement of access, was within their zone of privacy protected by the Fourth Amendment. They say that the illegal entry into the hallway constitutes an alternative basis to support a decision suppressing the evidence, although such an argument was rejected by the district court. The government does not argue that the entry into the hallway was justified by the arrest warrant. Rather, it maintains that under the established facts and law, the defendants’ privacy rights did not extend to the hallway. Thus, it contends that the officers’ entry into the hallway was constitutional. The first issue, therefore, is whether defendants’ Fourth Amendment interests extended to the hallway, rendering" }, { "docid": "630293", "title": "", "text": "bathroom with his weapon drawn, turned the doorknob, and opened the door without knocking or seeking the consent of anyone, including Hister or Thomas. Upon opening the door, Karls found Fisher sitting on the toilet with his pants down. Fisher, after being ordered to raise his hands, was physically escorted out of the bathroom with his pants around his knees and handcuffed. Karls reentered the bathroom, looked in the trash can, and found the contested firearm, a Walther PK .380 caliber handgun. The officers seized the weapon and arrested Fisher on state law charges of being a felon in possession of a firearm. Although no other criminal charges were brought against any of the men, all three of them were transported to the police station. Following a forensic examination, no fingerprints were found on the weapon. Although Fisher was bound over for trial in the state courts, the charges were later dismissed. Thereafter, the Government filed this federal lawsuit, charging Fisher with one count of being a felon who possessed a firearm in violation of 18 U.S.C. § 922(g). II The Fourth Amendment to the Constitution protects the citizenry from being required to endure unreasonable searches or seizures of their persons or property. U.S. Const. Amend. IV. In constitutional jurisprudence, it is well settled that “searches and seizures inside a home are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Moreover, the Supreme Court has remarked that “[a] hotel room can clearly be the object of Fourth Amendment protection as much as a home or an office.” Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (citing United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951)). Thus, according to the Court, “[n]o less than a tenant of a house, or the occupant of a room in a boarding house, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures .” Stoner v. State of Calif, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d" }, { "docid": "18954332", "title": "", "text": "violated his rights under the Fourth Amendment of the U.S. Constitution, which states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. The Supreme Court has suggested that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting United States v. United States Dist. Ct., 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). As a general rule, to satisfy the Fourth Amendment a search of a home must be supported by probable cause, and there must be a warrant authorizing the search. Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933) (“Under the Fourth Amendment, an officer may not properly issue a warrant to search a private dwelling unless he can find probable eause[.]”). The Fourth Amendment states that warrants shall not issue except upon a showing of “probable cause.” Even when probable cause is shown, a warrantless search will normally be invalid unless there are “exigent circumstances” that justify proceeding without a warrant. Stated another way, there are two means by which a search normally may be justified as reasonable under the Fourth Amendment: One is where the search has been pre-sanctioned by a judicial officer upon a finding of probable cause for the search; the other is where, despite the absence of a warrant approving a specific search, there is not only probable cause for the search, but also “exigent circumstances” sufficient to justify law enforcement officers to forego obtaining a warrant. Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002); United States v. Johnson, 256 F.3d 895, 905 (9th Cir.2001) (en banc). See also Ortiz-Sandoval v. Clarke, 323" }, { "docid": "18954331", "title": "", "text": "did — in Brooks’s wallet. The case went to trial on April 28, 2002. The cash and the items of clothing seized by Perez were introduced at the jury trial. Two days later, Brooks was convicted by a jury of bank robbery. II Brooks challenges the district court’s rulings denying his motion to suppress, and contends that the district court erred in concluding that the search was justified by probable cause, and that exigent circumstances excused Perez’s warrantless entry into Brooks’s hotel room. Also, Brooks contends that even if the warrantless search was permissible at the outset, Perez had to stop the search and leave the room after Bengis said that she was fine and did not need help. Brooks further contends that Perez’s questioning about illegal items lay outside the scope of any exigency that prompted his entry. Finally, Brooks argues that his consent to Perez’s search of the hotel room for marijuana, after entry, was tainted by prior Fourth Amendment violations. III A Brooks argues that Perez’s warrantless entry into the hotel room violated his rights under the Fourth Amendment of the U.S. Constitution, which states: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. The Supreme Court has suggested that the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting United States v. United States Dist. Ct., 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). As a general rule, to satisfy the Fourth Amendment a search of a home must be supported by probable cause, and there must be a warrant authorizing the search. Nathanson v. United States, 290 U.S. 41, 47, 54 S.Ct. 11, 78 L.Ed. 159 (1933)" }, { "docid": "14424466", "title": "", "text": "which is required at this stage of the proceedings. C. Fourth Amendment claims The Fourth Amendment provides protection against “unreasonable searches and seizures,” and “the arrest of a person is quintessentially a seizure.” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (internal quotation marks omitted). Moreover, the Supreme Court has explained that because “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed[,] ... [i]t is a basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Id. at 585-86, 100 S.Ct. 1371 (citations and internal quotation marks omitted). Thus, unless one of the “few well-defined and carefully circumscribed circumstances” justifying a warrantless entry exists, the Fourth Amendment reasonableness standard “generally requires that police obtain a warrant based upon a judicial determination of probable cause prior to entering a home.” Thacker v. City of Columbus, 328 F.3d 244, 252 (6th Cir.2003) (citing Payton, 445 U.S. at 585-86, 100 S.Ct. 1371). El Bey has alleged facts giving rise to two independent claims of Fourth Amendment violations. The circumstances surrounding the officers’ entry into his residence form the basis of El Bey’s first claim that the entry was unlawful and that he was unlawfully seized. His contention that the officers searched his papers without consent underpins his second claim of an illegal search. To determine whether the officers are entitled to qualified immunity on these claims, we must first decide if El Bey has raised a genuine issue of material fact as to whether his Fourth Amendment rights were violated. We will address each of his claims in turn. 1. Deputy Marshal Frisby’s and Officer Roop’s entry into 1580 Green-lake Drive El Bey first contends that the officers unlawfully entered his residence and detained him without probable cause or exigent circumstances. The officers respond by arguing that their entrance into El Bey’s residence was justified because (1) Goode, another resident, had consented to the entry, and (2) they had a federal arrest warrant to apprehend Ray" }, { "docid": "2612224", "title": "", "text": "A. STANDARD OF REVIEW The government contends on appeal that the district court erred in granting the defendants’ motions to suppress. In reviewing a district court’s decision regarding a motion to suppress evidence, we review all factual findings for clear error and all legal conclusions de novo. United States v. Yoon, 398 F.3d 802, 805 (6th Cir.2005). In particular, we review de novo the district court’s determinations that no exigency existed to justify the Hendersonville police officers’ warrantless entry into McClain’s home, that all subsequently seized evidence constituted the fruit of the initial illegal search, and that the good faith exception to the exclusionary rule does not apply to this evidence. See United States v. Rohrig, 98 F.3d 1506, 1511 (6th Cir.1996). B. LEGALITY OF THE WARRANT-LESS SEARCH We first address the legality of the warrantless search of McClain’s residence. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures .... ” U.S. Const, amend. IV. Because the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972), “a search carried out on a suspect’s premises without a warrant 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, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971). More precisely, the police may not enter a private residence without a warrant unless both “probable cause plus exigent circumstances” exist. Kirk v. Louisiana, 536 U.S. 635, 638, 122 S.Ct. 2458, 153 L.Ed.2d 599 (2002) (per curiam); United States v. Chambers, 395 F.3d 563, 572 (6th Cir.2005). There is no dispute that the warrantless search of McClain’s home on October 12, was “presumptively unreasonable” under the Fourth Amendment. Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The government, however," }, { "docid": "22502522", "title": "", "text": "exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.\" Pearson , 555 U.S. at 231, 129 S.Ct. 808. II. FOURTH AMENDMENT UNLAWFUL ENTRY CLAIM The officers' entry into Bonivert's house-his \"castle\"-requires us to invoke bedrock Fourth Amendment principles. The Fourth Amendment protects \"[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.\" U.S. Const. amend. IV. It has long been recognized that the \"physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.\" Payton v. New York , 445 U.S. 573, 585-86, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting United States v. U.S. Dist. Court for E. Dist. of Mich. , 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972) ). This \"special protection\" of the home \"as the center of the private lives of our people\" reflects an ardent belief in \" 'the ancient adage that a man's house is his castle to the point that the poorest man may in his cottage bid defiance to all the forces of the Crown.' \" Randolph , 547 U.S. at 115, 126 S.Ct. 1515 (quoting Minnesota v. Carter , 525 U.S. 83, 99, 119 S.Ct. 469, 142 L.Ed.2d 373 (1998) ; Miller v. United States , 357 U.S. 301, 307, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958) (internal alterations omitted) ). For that reason, \"[i]t is a 'basic principle of Fourth Amendment law' \" that warrantless searches of the home or the curtilage surrounding the home \"are presumptively unreasonable.\" Payton , 445 U.S. at 586, 100 S.Ct. 1371 (quoting Coolidge v. New Hampshire , 403 U.S. 443, 477, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971) ). Among constitutional rules, few are as well established, frequently applied, and familiar to police officers as the warrant requirement and its exceptions. Because there is no dispute that the officers failed to obtain a warrant before entering Bonivert's home, the entry was presumptively unreasonable. The officers argue that their entry was nevertheless" }, { "docid": "2784310", "title": "", "text": "until they obtained a warrant. The search warrant application included the following information: “Officers knocked on the [motel] door and .identified themselves and Mr. Tilton opened the door. At that time, in plain view were coin rolls and coin sets throughout the room.” The police obtained a search warrant for the motel room and seized a Smith & Wesson .38 caliber revolver, a Colt pistol, coins, three large briefcases, and other items believed to have been taken during the burglary. After searching the room, police obtained a warrant for Conner’s residence in Sloan, Iowa based on the same facts used to support the first warrant and a list of the items seized from the motel room. During the search of Conner’s house, law enforcement officers seized items they believed had also been taken during the burglary. II. Based on these facts, we agree with the district court that the officers’ entry into the motel room and arrest of the occupants violated Conner’s and Tilton’s Fourth Amendment rights. It is a well-established constitutional principle that law enforcement officers may not enter a person’s home without a warrant unless the entry is justified by exigent circumstances or the consent of the occupant. Steagald v. United States, 451 U.S. 204, 211, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed,2d 639 (1980). In Payton, the Supreme Court explained that no zone of privacy is more clearly defined than a person’s home: “[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” 445 U.S. at 590, 100 S.Ct. at 1382. The same protection against unreasonable searches and seizures extends to a person’s privacy in temporary dwelling-places such as hotel or motel rooms. Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966); Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893-94, 11 L.Ed.2d 856 (1964); United States v. Rambo, 789 F.2d 1289, 1295 (8th Cir.1986). The" }, { "docid": "7065306", "title": "", "text": "search or an arrest, is the fundamental concept that any governmental intrusion into an individual’s home ... must be strictly circumscribed.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Indeed, “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed [and courts] have long adhered to the view that the warrant procedure minimizes the danger of needless intrusions of that sort.” Id. (quotation marks and citation omitted). Thus, “[i]t is a ‘basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Id. (citation omitted). See also United States v. Karo, 468 U.S. 705, 714-15, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (same); Anobile, 274 F.3d at 58 (“Privacy expectations are high in homes .... [and] homes receive the highest Fourth Amendment protections.”). “With few exceptions, the question whether a warrantless [arrest or search inside] a home is reasonable and hence constitutional must be answered no.” Kyllo v. United States, 533 U.S. 27, 121 S.Ct. 2038, 2042, 150 L.Ed.2d 94 (2001). There are two exceptions to this strict prohibition of entering a person’s home without a warrant: exigent circumstances or consent. See Steagald v. United States, 451 U.S. 204, 214 n. 7, 101 S.Ct. 1642, 68 L.Ed.2d 38 (1981) (“[A]bsent exigent circumstances or consent, an entry into a private dwelling to conduct a search or effect an arrest is unreasonable without a warrant.”). Although only an exception, obtaining consent to enter a home is an appealing alternative, in the opinion of some commentators, to securing a warrant and therefore “frequently relied upon” by law enforcement officials. 3 Wayne R. LaFave, Search and Seizure: A Treatise on the Fourth Amendment § 8.1 (3d ed. 1996) (“LaFave, Search and Seizure”). Professor LaFave has argued that this is true even when probable cause is present because the police believe the “warrant procedure is overly technical and time-consuming and that it has no corresponding advantages for them or meaningful protections for the individual.” Id. “[Consent will often appear to" }, { "docid": "23466845", "title": "", "text": "States v. Carpenter, 360 F.3d 591, 604 (6th Cir.2004). I would suppress and therefore I dissent. MOORE, Circuit Judge, dissenting. I join fully in Judge Martin’s persuasive dissent. I separately and respectfully dissent from the majority because the government has failed to prove by a preponderance of the evidence that Sean Carter (“Carter”) “unequivocally” consented to the police officers’ entry into his hotel room. I concur neither with the majority’s quiet adoption of a principle that implied consent will suffice to justify a warrantless entry nor with its application of this standard to the entry of Carter’s hotel room. Such a holding unnecessarily upends the precedent of this circuit in a manner that contradicts the law established by the United States Supreme Court. One must begin with the constitutional imperative against warrantless entries ensconced in the Fourth Amendment. Because “[t]he right of the people to be secure ... against unreasonable searches and seizures! ] shall not be violated,” U.S. Const. Amend. IV, warrantless searches and seizures are “presumptively unreasonable.” Payton v. New York, 445 U.S. 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." }, { "docid": "2267157", "title": "", "text": "woman,’ who was insistent upon entering her residence ‘come hell or high water,’ ” to look for a water leak in the darkened residence. On appeal, Defendants claim there was no exigency to justify the entry and, therefore, the agents should have sought a warrant. When reviewing a district court’s decision to deny a motion.to suppress, we review the district court’s legal conclusions de novo and disturb its factual findings only if they are clearly erroneous. United States v. Bates, 84 F.3d 790, 794 (6th Cir.1996). The Fourth Amendment provides that: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and par ticularly describing the place to be searched, and the persons or things to be seized.” U.S. Const, amend IV. The “chief evil” against which the Fourth Amendment protects is the “physical entry of the home.” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). The Fourth Amendment requires that searches of the home be reasonable. See Illinois v. Rodriguez, 497 U.S. 177, 185-86, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990). This reasonableness requirement generally requires police to obtain a warrant based upon a judicial determination of probable cause prior to entering a home. See Payton, 445 U.S. at 585-86, 100 S.Ct. 1371. The Fourth Amendment prohibition against entering a home without a warrant applies equally whether the police enter a home to conduct a search or seizure or for some other purpose. See Rohrig, 98 F.3d at 1511-12. In the present case, because no warrant was obtained before Agent Henderson entered the Bluegrass residence with Smith and Barnett on October 22, 1999, the Government must overcome the presumption that the entry was unreasonable. See Ewolski v. City of Brunswick, 287 F.3d 492, 501 (6th Cir.2002) (citing O’Brien v. City of Grand Rapids, 23 F.3d 990, 996 (6th Cir.1994)). There are a few well-defined and carefully circumscribed circumstances in which a warrant will not" }, { "docid": "6530946", "title": "", "text": "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. Further, “[i]t is a ‘basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (citing Coolidge v. New Hampshire, 403 U.S. 443, 477-78, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Additionally, the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Accordingly, our law dictates that unless some exception applies,' the search at issue in this case, a warrantless nonconsensual search of Kelly Gould’s bedroom in his home, must be found unconstitutional. The majority is correct that the Supreme Court has outlined a “general reasonableness approach” that can be applied in Fourth Amendment pases and which requires balancing the intrusion on the protected interests against the promotion of legitimate governmental interests. See, e.g., United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). This reasonableness inquiry, however, is to be conducted within the bedrock legal boundaries outlined above, ie., a non-consensual warrantless search of a home is presumed unreasonable. Id. at 121, 122 S.Ct. 587 (describing what the Fourth Amendment normally requires). The inquiry conducted in Knights, that the majority purports to rely on in this case, is in fact within these legal boundaries because unlike in this case, the defendant in Knights was on probation and as a term of his probation had consented in writing to unannounced searches of his home. Id. at 114, 122 S.Ct. 587. The Supreme Court found the “probation search condition” a “salient circumstance” and thus both the intrusion on the defendant’s expectation of privacy was less and the governmental interest was greater, ie., heightened concerns due to the fact that probationers are more" }, { "docid": "14942110", "title": "", "text": "task force put themselves at risk of the very danger that necessitated the protective sweep. And nothing the officers learned upon entering — i.e. that the Defendant might be there — was new to them. Accordingly, the Court finds that the search of Defendant’s bedroom was unreasonable under the Fourth Amendment.... Id. at 161-62. The government filed a timely Notice of Appeal of the District Court’s Order granting the motion to suppress and a certification, pursuant to 18 U.S.C. § 3731, that the appeal “is not taken for purpose of delay, and that the evidence suppressed pursuant to the November 20 Order is a substantial proof of a fact material in the proceeding.” ANALYSIS I. Evolution of the Protective Sweep Doctrine The Fourth Amendment protects “[t]he right of the people to be secure in their person, houses, papers and effects against unreasonable searches and seizures.” U.S. Const, amend. IV. Because “the physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed,” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (internal quotation marks omitted), “[i]t is a basic principle of Fourth Amendment law that searches inside a home without a warrant are presumptively unreasonable,” Brigham City, Utah v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (internal quotation marks omitted). The Supreme Court found the presumption to be rebutted in the case of searches that fall under the definition of “protective sweep”: “A ‘protective sweep’ is a quick and limited search of premises, incident to an arrest and conducted to protect the safety of police officers or others. It is narrowly confined to a cursory visual inspection of those places in which a person may be hiding.” Buie, 494 U.S. at 327, 110 S.Ct. 1093. Buie had its genesis in the armed robbery of a restaurant by two men, one of whom was wearing a red running suit. Investigation apparently led to Buie and an accomplice, and police secured arrest warrants for both. After conducting surveillance of Buie’s house and learning" }, { "docid": "6934643", "title": "", "text": "supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. The Fourteenth Amendment incorporates the Fourth Amendment, prohibiting unreasonable searches and seizures by the states. See Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). According to the Supreme Court, [t]he Fourth Amendment protects the individual’s privacy in a variety of settings. In none is the zone of privacy more clearly defined than when bounded by the unambiguous physical dimensions of an individual’s home — a zone that finds its roots in clear and specific constitutional terms: “The right of the people to be secure in their ... houses ... shall not be violated.” That language unequivocally establishes the proposition that “[a]t the very core [of the Fourth Amendment] stands the right of a man to retreat into his own home and there be free from unreasonable government intrusion.” In terms that apply equally to seizures of property and to seizures of persons, the Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant. Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 1381-82, 63 L.Ed.2d 639 (1980) (citation omitted). Thus, “[i]t is a ‘basic principle of Fourth Amendment law’ that searches and seizures inside a home without a warrant are presumptively unreasonable.” Id. at 586, 100 S.Ct. at 1380; see Michigan v. Tyler, 436 U.S. 499, 506, 98 S.Ct. 1942, 1948, 56 L.Ed.2d 486 (1978); see generally Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967); Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967). Even if police have probable cause to arrest a suspect, a warrant is required for police entry into the suspect’s house unless there are exigent circumstances that excuse the warrant requirement. Coolidge v. New Hampshire, 403 U.S. 443, 474-75, 91 S.Ct. 2022, 2042-43, 29 L.Ed.2d 564 (1971). The defendants do not dispute that the three probes constituted a" }, { "docid": "6530945", "title": "", "text": "U.S. 325, 110 S.Ct. 1093, 108 L.Ed.2d 276 (1990), is limited to situations involving the execution of an arrest warrant as we held in United States v. Wilson, 36 F.3d 1298 (5th Cir.1994); and if not (2) whether the search in this case was reasonable. In addressing these two issues, I think the majority makes three significant errors. First, the majority’s starting point in its Fourth Amendment analysis concerning a warrantless search of a home is faulty and therefore the majority does not fully account for the lack of consent in this case. Second, the majority’s reliance on the so-called “clearly” legitimate “knock and talk” police investigatory tactic is misplaced and therefore the majority’s holding leads to an end-run around the Fourth Amendment’s protections. Third, the majority has misconstrued the holding of the Supreme Court in Buie. I will address these three errors in order. I. The Fourth Amendment provides: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. Const, amend. IV. Further, “[i]t is a ‘basic principle of Fourth Amendment law that searches and seizures inside a home without a warrant are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (citing Coolidge v. New Hampshire, 403 U.S. 443, 477-78, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)). Additionally, the “physical entry of the home is the chief evil against which the wording of the Fourth Amendment is directed.” United States v. United States District Court, 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972). Accordingly, our law dictates that unless some exception applies,' the search at issue in this case, a warrantless nonconsensual search of Kelly Gould’s bedroom in his home, must be found unconstitutional. The majority is correct that the Supreme Court has outlined a “general reasonableness approach” that can be applied" }, { "docid": "2784311", "title": "", "text": "enforcement officers may not enter a person’s home without a warrant unless the entry is justified by exigent circumstances or the consent of the occupant. Steagald v. United States, 451 U.S. 204, 211, 101 S.Ct. 1642, 1647, 68 L.Ed.2d 38 (1981); Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 1380, 63 L.Ed,2d 639 (1980). In Payton, the Supreme Court explained that no zone of privacy is more clearly defined than a person’s home: “[T]he Fourth Amendment has drawn a firm line at the entrance to the house. Absent exigent circumstances, that threshold may not reasonably be crossed without a warrant.” 445 U.S. at 590, 100 S.Ct. at 1382. The same protection against unreasonable searches and seizures extends to a person’s privacy in temporary dwelling-places such as hotel or motel rooms. Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 413, 17 L.Ed.2d 374 (1966); Stoner v. California, 376 U.S. 483, 490, 84 S.Ct. 889, 893-94, 11 L.Ed.2d 856 (1964); United States v. Rambo, 789 F.2d 1289, 1295 (8th Cir.1986). The government contends that Payton does not apply because the police did not “enter” the motel room; they merely observed contraband in plain view when Til-ton opened the door. In other words, the government asserts that Conner and Tilton voluntarily engaged with the police at the motel. See United States v. Deanda, 73 F.3d 825, 825-26 (8th Cir.1996) (person who opens door voluntarily or in response to a simple knock by police knowingly exposes to the public anything that can be seen through the door thereby defeating any possible Fourth Amendment arguments because it involves no “search.”); United States v. Peters, 912 F.2d 208, 210 (8th Cir.1990) (same). The district court, however, correctly determined that an unconstitutional search occurs when officers gain visual or physical access to a motel room after an occupant opens the door not voluntarily, but in response to a demand under color of authority. See United States v. Jerez, 108 F.3d 684, 692 (7th Cir.1997); United States v. Tovar-Rico, 61 F.3d 1529, 1535-36 (11th Cir.1995); United States v. Winsor, 846 F.2d 1569," }, { "docid": "19826330", "title": "", "text": "denial of her motion to amend her complaint and the grant of the City’s motion for summary judgment. The district court denied the motion and this timely appeal followed. II. Although this Court will “generally review a denial of a motion to alter or amend a judgment under Rule 59(e) for abuse of discretion, ‘when the Rule 59(e) motion seeks review of a grant of summary judgment, ... we apply a de novo standard of review.’ ” Shelby County Health Care Corp. v. Majestic Star Casino, LLC, 581 F.3d 355, 375 (6th Cir.2009) (quoting Wilkins v. Baptist Healthcare Sys., Inc., 150 F.3d 609, 613 (6th Cir.1998)). “The Fourth Amendment protects ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures....’” United States v. McClain, 444 F.3d 556, 561 (6th Cir.2006) (quoting U.S. Const, amend. IV) (alteration in original). The “ ‘chief evil’ ” that the Fourth Amendment protects against is the “ ‘physical entry of the home.’ ” Payton v. New York, 445 U.S. 573, 585, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980) (quoting United States v. U.S. Dist. Court for the E. Dist. of Mich., 407 U.S. 297, 313, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972)). Searches of the home must be reasonable. Thacker v. City of Columbus, 328 F.3d 244, 252 (6th Cir.2003). “This reasonableness requirement generally requires that police obtain a warrant based upon a judicial determination of probable cause prior to entering a home.” Id. at 252. Warrantless entries into the home are “presumptively unreasonable.” Payton, 445 U.S. at 586, 100 S.Ct. 1371. As “the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ ” there are several exceptions to the warrant requirement that are ultimately grounded in that standard. See Brigham City v. Stuart, 547 U.S. 398, 403, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006). Lists of recognized exceptions are inclusive rather than exclusive. “Exigent circumstances” are one such exception. See Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978) (“[Warrants are generally required to search a person’s home or his" }, { "docid": "630294", "title": "", "text": "18 U.S.C. § 922(g). II The Fourth Amendment to the Constitution protects the citizenry from being required to endure unreasonable searches or seizures of their persons or property. U.S. Const. Amend. IV. In constitutional jurisprudence, it is well settled that “searches and seizures inside a home are presumptively unreasonable.” Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980). Moreover, the Supreme Court has remarked that “[a] hotel room can clearly be the object of Fourth Amendment protection as much as a home or an office.” Hoffa v. United States, 385 U.S. 293, 301, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966) (citing United States v. Jeffers, 342 U.S. 48, 72 S.Ct. 93, 96 L.Ed. 59 (1951)). Thus, according to the Court, “[n]o less than a tenant of a house, or the occupant of a room in a boarding house, a guest in a hotel room is entitled to constitutional protection against unreasonable searches and seizures .” Stoner v. State of Calif, 376 U.S. 483, 490, 84 S.Ct. 889, 11 L.Ed.2d 856 (1964) (citations omitted). The standards that pertain to the instant case have been clearly established. “[T]he police must, whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure .... ” Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). A search that is executed pursuant to a warrant usually will be reasonable. Although the warrant requirement can be relaxed when exigent circumstances are presented, id., “[t]he burden of justifying a warrant-less entry into a private home or motel room is, of course, upon the Government.” United States v. Killebrew, 560 F.2d 729, 733 (6th Cir.1977). If the Government is unable to meet its burden, “the general remedy for a Fourth Amendment violation is that the evidence obtained due to the unconstitutional search or seizure is inadmissible, including both evidence obtained as a direct result of the unconstitutional search and seizure and evidence that is considered fruit of the poisonous tree.” United States v. Murphy, 241 F.3d 447, 457 (6th Cir.2001) (citing United States v. Dice," } ]

[ { "docid": "23087246", "title": "", "text": "a matter of fact, even in situations where such improper cross-examination as is here involved has occurred as to a witness — not the defendant — who has given testimony of substance, materiality and relevance, so as to make the rule operative, we have not allowed the rule to have an abstract and absolute application. We have affirmed convictions, on the strength of the proof of guilt, in situations where the cross-examination as to acts of misconduct on the part of such a witness has involved more flagrancy than here, but where we equally were satisfied that this could not in the circumstances have affected the result. See e. g. Apt v. United States, 8 Cir., 13 F.2d 126, 127; Salerno v. United States, 8 Cir., 61 F.2d 419, 424-425. The second error urged by appellant is that the trial court permitted the Government to introduce evidence as to the prosecutrix’s good reputation for truth and veracity, although there had been no assailment of that reputation by appellant. The general rule is that, until the reputation of a witness for truth and veracity has been assailed by evidence in relation to it, it is not in issue, and that there accordingly exists in such a situation no right to introduce testimony in support of it. Central Coal & Coke Co. v. Penny, 8 Cir., 173 F. 340, 346; 58 Am.Jur., Witnesses, § 812. Mere contravening testimony by other witnesses on the facts does not constitute such an assailment in the sense of the rule. Vandeventer v. Traders’ Nat. Bank of Kansas City, 8 Cir., 241 F. 584, 587. Wigmore recognizes as the underlying basis of the rule the fact that every witness is in law assumed to be of normal moral character for veracity and that it therefore is not until his character is in this respect brought specifically into question that “it * * * becomes worth while to deny that his character is bad”. IV Wigmore on Evidence, 3rd ed., § 1104. Similarly, there is also judicial declaration that “the law presumes every person to be reputed truthful" } ]

[ { "docid": "21914058", "title": "", "text": "the “attack” on the defendant’s credibility consisted of a vigorous cross-examination and the pointing out by the prosecutor of discrepancies between the defendant’s testimony and that of other witnesses. This does not call into question the reputation of the defendant for truthfulness. The mere fact that a witness is contradicted by other evidence in a case does not constitute an attack upon his reputation for truth and veracity. Kauz v. United States, 188 F.2d 9 (5th Cir. 1951). Danehy claims that under Rule 404 of the Federal Rules of Evidence an accused may always bring forth evidence of a pertinent character trait and that his reputation for truth is pertinent in the instant case. We reject this line of reasoning. Since Danehy is trying to offer evidence to bolster himself as a witness rather than to show a trait of character that is pertinent to the crime charged, it is Federal Rule of Evidence 608, not 404, that governs. Rule 608 specifically states that “evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Government counsel pointing out inconsistencies in testimony and arguing that the accused’s testimony is not credible does not constitute an attack on the accused’s reputation for truthfulness within the meaning of Rule 608. Thus, Danehy may not attempt to bolster his testimony by evidence as to his reputation for truthfulness. Therefore, the district court properly denied Danehy’s request to call witnesses to testify to his reputation for truthfulness. II. Danehy’s second contention is that the trial court gave an improper jury instruction on whether it was necessary that Da-nehy know it was federal officers he was resisting. Tied in with this is Danehy’s claim that he was improperly denied an instruction to the jury on the subject of resisting an unlawful arrest. Danehy’s theory of defense was that actions, if any, taken by him prior to the boarding of his vessel were justified because he did not know the identity of his pursuers and therefore he was acting in defense of" }, { "docid": "16391116", "title": "", "text": "to aid the jury in understanding the evidence. See Whitted, 11 F.3d at 786; Antone, 981 F.2d at 1062. Her testimony was limited and did not invade the jury’s fact-finding function, as she did not comment on T.F.’s credibility or state a diagnosis to the jury. See Whitted, 11 F.3d at 786 (holding that doctor’s diagnosis of child sexual abuse “went too far”). IV On another evidence ruling, Lukashov challenges the district court’s admission of Katie White’s testimony that T.F. had a truthful character. Federal Rule of Evidence 608(a) states that a witness’s credibility may be supported by opinion testimony about the witness’s character for truthfulness, but that “evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.” We have said that Rule 608(a) “permits rehabilitation after indirect attacks on a witness’s general character for truthfulness” but “prohibits rehabilitation by character evidence of truthfulness after direct attacks on a witness’s veracity in the instant case.” United States v. Dring, 930 F.2d 687, 691 (9th Cir.1991). “It is for the trial court, exercising its discretion, to determine whether given conduct constitutes a direct or indirect attack on a witness’s character for truthfulness.” Id. Lukashov contends that White’s opinion testimony on T.F.’s truthful character was not admissible because T.F.’s character for truthfulness had not been attacked. We disagree. Lukashov’s defense stressed that T.F. was lying because her mother told her to lie, that she not only lied on the witness stand at trial, but had been lying from the beginning, to the police and to Dr. Lorenz and > to Rachel Petke. Lukashov did not merely point out inconsistencies in T.F.’s trial testimony. Rather, he focused his defense, from opening statement through closing argument, on calling T.F. a liar. As it appears to us, the defense argument carried “ ‘strong accusations of misconduct and bad character’ ” of T.F., which the district court thought in fairness permitted evidence of her good character and truthfulness. See id. at 692 (quoting McCormick on Evidence); 1 McCormick on Evidence § 47 (6th ed.2009) (stating that the greater the number" }, { "docid": "16391117", "title": "", "text": "trial court, exercising its discretion, to determine whether given conduct constitutes a direct or indirect attack on a witness’s character for truthfulness.” Id. Lukashov contends that White’s opinion testimony on T.F.’s truthful character was not admissible because T.F.’s character for truthfulness had not been attacked. We disagree. Lukashov’s defense stressed that T.F. was lying because her mother told her to lie, that she not only lied on the witness stand at trial, but had been lying from the beginning, to the police and to Dr. Lorenz and > to Rachel Petke. Lukashov did not merely point out inconsistencies in T.F.’s trial testimony. Rather, he focused his defense, from opening statement through closing argument, on calling T.F. a liar. As it appears to us, the defense argument carried “ ‘strong accusations of misconduct and bad character’ ” of T.F., which the district court thought in fairness permitted evidence of her good character and truthfulness. See id. at 692 (quoting McCormick on Evidence); 1 McCormick on Evidence § 47 (6th ed.2009) (stating that the greater the number of inconsistencies brought out in cross-examination, “the stronger is the inference that by character the witness is a liar, not simply a witness who has told an isolated lie”). Though this evidence ruling presents a close question, we hold that the district court did not abuse its discretion when it responsively admitted White’s testimony on T.F.’s truthful character. V Lukashov’s final evidentiary contention is that the district court improperly excluded evidence of Cassedy Filer’s alleged prior acts. Lukashov alleged that Cassedy made false allegations of assault against her ex-husband, Merlin Filer, and then threatened to take their children to force him to plead guilty, and that she tried to plant false memories in T.F. of Merlin trying to drown her in the bathtub and burn her with a cigarette. Lukashov sought to introduce evidence of these acts to support his theory that Cassedy had coached T.F. into making false allegations of sexual abuse against him. The district court excluded this evidence under Federal Rule of Evidence 404(b). Lukashov argues that he offered the evidence for" }, { "docid": "22424308", "title": "", "text": "F.2d 782, 786 (11th Cir.), cert. denied, 501 U.S. 1223, 111 S.Ct. 2840, 115 L.Ed.2d 1009 (1991). A reasonable jury could have found that Hernandez associated himself with the conspiracy, and “that by conducting surveillance and actively seeking the lost cocaine, [he] intended to bring about the successful completion” of the crime. Id. Viewing the evidence in the light most favorable to the government, including all reasonable inferences and credibility judgments, see Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942), we conclude a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. United States v. Kelly, 888 F.2d 732, 740 (11th Cir.1989). We affirm Hernandez’s convictions as to each count. D. Prosecutorial Misconduct i Improper Vouching Riverol and Delgado argue the trial judge erred in permitting the government to introduce portions of plea agreements between the government and its cooperating witnesses. The portions challenged contained promises to testify truthfully. Because these agreements were introduced on direct examination, before any cross-examination attack on the witness’s credibility, the defense argues the government improperly attempted to bolster or vouch for the credibility of its witnesses. The defense relies on United States v. Hilton, 772 F.2d 783, 787 (11th Cir.1985), for this rule of law. This Court, however, modified Hilton the following year in United States v. Cruz, 805 F.2d 1464 (11th Cir.1986). Under Cruz, if defense counsel attacks a witness’s credibility during opening the prosecutor may rehabilitate the witness on direct examination. Specifically, a prosecutor may “elicit testimony regarding the truth-telling portion of a cooperation agreement during direct examination.” Id. at 1480. In the instant case, the record discloses abundant vitriolic remarks during defense eounsels’s openings on the character and credibility of government witnesses, the least of which included calling them liars, perjurers, and paid prevaricators. (See R. 6:278-305). Accordingly, we conclude the trial judge did not err when he permitted the prosecutor to delve into the plea agreements on direct examination. ii. Improper Comment in Closing Argument a. Defendants’s Failure to Explain Presence at a Shopping Center Delgado and Hernandez request" }, { "docid": "2785458", "title": "", "text": "The cases cited by appellant, United States v. Martinez, 496 F.2d 664, 669 (5th Cir.), cert. denied, 419 U.S. 1051, 95 S.Ct. 627, 42 L.Ed.2d 646 (1974), and United States v. Womack, 454 F.2d 1337, 1345 (5th Cir.1972), may be distinguished from the present case in that the trial court in those cases failed to instruct the jury on the elements of the substantive offense as would have been the case here if the charge on Count Two had been eliminated. Having received such an instruction as well as the instruction on the Pinkerton theory, the jury could have found co-conspirator Gates guilty of committing the offense and appellant guilty under the agency theory. Admissibility of Testimony Appellant contends that the trial court erred by excluding the testimony of Dan McElroy, a polygraph examiner, as to his personal opinion that appellant is a truthful person. As appellant was attempting to offer this testimony to bolster his credibility as a witness rather than to show a character trait that is pertinent to the crime charged, Federal Rule of Evidence 608 governs. United States v. Danehy, 680 F.2d 1311, 1314 (11th Cir.1982); United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir.), cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). Under Rule 608, evidence of a truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Vigorous cross examination and/or the fact that a witness is contradicted by other evidence in the case does not constitute such an attack. United States v. Danehy, 680 F.2d at 1314; United States v. Jackson, 588 F.2d at 1055. As appellant’s character for truthfulness was never attacked by the government, the testimony of McElroy was properly excluded. Moreover, although Rule 608 imposes no requisite of long acquaintance or recent information about the witness (leaving such information to be elicited on cross examination) for opinion testimony as to a witness’s- character for truthfulness, it is questionable whether the testimony of a polygraphist as to a person’s truthfulness, which is based" }, { "docid": "14962109", "title": "", "text": "it may well be proper for trial counsel so to argue, such assertions should permit the accused to counter with the only weapon she has: her reputation for truth and veracity. . United States v. Warren, 13 M.J. 278 (C.M.A. 1982). . We recognize the problems involved in uncritically permitting the introduction of such evidence which is collateral to the central issue of the culpability of the accused and which \"at its best opens a tricky line of inquiry as to a shapeless and elusive subject matter.” Michelson v. United States, 335 U.S. 469, 480, 69 S.Ct. 213, 220, 93 L.Ed. 168 (1948). The rule clearly limits such evidence to situations where the witness' credibility has been attacked. However, that attack need not take the form of negative character testimony. See S. Saltzburg, L. Schinasi, and D. Schlueter, Military Rules of Evidence Manual 288 (1981). Inclusion of the \"or otherwise” language obviously was intended to broaden the expanse of the rule to encompass situations like that before us here. COX, Judge (concurring): I concur. Chief Judge Everett’s excellent opinion addresses the admissibility of the reputation of a witness for truth and veracity to bolster the witness when the “character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Mil.R.Evid. 608(a). I also agree that the evidence would have been properly excluded as substantive evidence of a pertinent character trait under Mil.R.Evid. 404, since the alleged offenses are not crimina falsi. However, I reserve judgment on whether there may not exist another independent ground for admissibility of the evidence when the accused takes the witness stand. Compare United States v. Darland, 626 F.2d 1235 (5th Cir. 1980), cert. denied, 454 U.S. 1157, 102 S.Ct. 1032, 71 L.Ed.2d 315 (1982), with United States v. Jackson, 588 F.2d 1046 (5th Cir.), cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979)." }, { "docid": "23375364", "title": "", "text": "(1913); Livingston v. State, 589 S.W.2d 395 (Tex.Crim.1979); State v. Ervin, 22 Utah 2d 216, 451 P.2d 372 (1969); Finnie v. State, 264 Ark. 638, 593 S.W.2d 32 (1980). See also, e.g., United States v. Jalbert, 504 F.2d 892, 895 (1st Cir. 1974) (“character evidence is admissible ... to show a party’s general renown for honesty and lawfulness”); Commonwealth v. Nagle, 157 Mass. 554, 32 N.E. 861, 862 (1893) (“unwillingness to commit crimes generally” apparently assumed a proper subject for character evidence). The only case we have found squarely stating that evidence of law-abidingness is generally inadmissible is Chung Sing v. United States, 4 Ariz. 217, 36 P. 205 (1894), but there is very little discussion of the issue. There is no indication of a general common law rule against the admissibility of evidence of law-abidingness (as distinguished from good character generally which, as noted, was usually held inadmissible). We hold, therefore, that the trait of law-abidingness was relevant and admissible under Rule 404(a). We cannot say that the exclusion of this evidence was harmless error. Cf. Michelson v. United States, 335 U.S. at 476, 69 S.Ct. at 218 (evidence of good character may in itself raise a reasonable doubt as to defendant’s guilt). We therefore remand for a new trial. Vacated and remanded. . As guidance for the district court on retrial, we note our rejection of Angelini’s argument that he should have been permitted to introduce evidence of his character for truthfulness. If not pertinent to the crime charged — and An-gelini does not argue that it is — such evidence is admissible “only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Fed.R.Evid. 608(a). The mere fact that an accused takes the stand does not give him the right to present character evidence supporting his veracity. United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir.), cert, denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). Nor does contradiction of a witness, even the accused, necessarily require the admission of proffered evidence for truthfulness. Id. The" }, { "docid": "18913936", "title": "", "text": "is admissible only after the character of the witness for truthfulness had been attacked by opinion or reputation evidence or otherwise. Fed.R.Evid. 608 (emphasis added). We find no evidence of an attack upon Jackson’s character for truthfulness. During the cross-examination the government attorney questioned Jackson closely about his version of the facts and pointed out conflicts between that testimony and the testimony of other witnesses. However, “[t]he mere fact that a witness is contradicted by other evidence in the case does not constitute an attack upon his reputation for truth and veracity.” Kauz v. United States, 188 F.2d 9, 10 (5th Cir. 1951). See Homan v. United States, 279 F.2d 767, 772 (8th Cir. 1960). The district court did not err in excluding the proffered evidence. We do not find that the cross-examination of the accused as to his intent amounted in this case to an attack on his character for truthfulness by opinion, reputation or otherwise. Such is the necessary predicate under Mil.R.Evid. 608 enabling the accused to counter with evidence of his truthful character. State v. Wells, Me., 423 A.2d 221 (1980) and First National Bank of Bartesville v. Blakeman, 19 Okla. 106, 91 P.2d 868, 869 (1907). The cross-examination of accused going to his version of the facts was not enough, in our judgment, to raise the implication that he had a bad character for truthfulness. In short, it did not constitute a broadside attack on the accused as generally untruthful. United States v. Medical Therapy Sciences, Inc., 583 F.2d 36, 39 (2d Cir. 1978). See also Weinstein, Evidence § 608[08] (1977); McCormick, Evidence § 49 (1954); IV Wigmore, Evidence (Chadbourne rev. 1972) § 1108, 1109. See also, Phillips, A Comparative Study of the Witness Rules in the Proposed Federal Rules of Evidence and in Tennessee Law, 39 Tenn.L.Rev. 379, 391 (1972) and Booksh, Article VI of the Federal Rules of Evidence: Witnesses, 36 La.L.Rev. 99, 116 (1975). We recognize that it is possible for cross-examination to attack the character for truthfulness of an accused or other witness. United States v. Medical Therapy Sciences, Inc., supra. Here," }, { "docid": "21914057", "title": "", "text": "period arrested. He claims he was handcuffed and forced to kneel. He asserts that when he attempted to stand he was knocked down and that he never attempted to kick anyone. He claims that he passively resisted and remained limp, thereby forcing the Coast Guardsmen to carry him off the vessel. Both sides agree that all the passengers were then taken off Danehy’s boat. They boarded the Coast Guard cutter and arrived at Cortez early in the morning of March 23. The appellant claims the trial court made three reversible errors. We turn to the first of these, the contention that the district court should have allowed Danehy to call three witnesses to testify to his reputation for truthfulness. I. Danehy claims that under United States v. Hewitt, 634 F.2d 277 (5th Cir. 1981), he should have been allowed to introduce evidence of his reputation for truthfulness as his credibility had been attacked. We disagree. We addressed precisely this issue in United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir. 1979). There, as here, the “attack” on the defendant’s credibility consisted of a vigorous cross-examination and the pointing out by the prosecutor of discrepancies between the defendant’s testimony and that of other witnesses. This does not call into question the reputation of the defendant for truthfulness. The mere fact that a witness is contradicted by other evidence in a case does not constitute an attack upon his reputation for truth and veracity. Kauz v. United States, 188 F.2d 9 (5th Cir. 1951). Danehy claims that under Rule 404 of the Federal Rules of Evidence an accused may always bring forth evidence of a pertinent character trait and that his reputation for truth is pertinent in the instant case. We reject this line of reasoning. Since Danehy is trying to offer evidence to bolster himself as a witness rather than to show a trait of character that is pertinent to the crime charged, it is Federal Rule of Evidence 608, not 404, that governs. Rule 608 specifically states that “evidence of truthful character is admissible only after the character of" }, { "docid": "15053043", "title": "", "text": "of credibility between the two people who testify. Again, a one-on-one transaction, it’s not expected that the government bring in 132 witnesses who would have seen the transactions go down. By its very nature, it’s only the informant against the person who sold the marihuana ____ II According to Mil.R.Evid. 608(a)(2), evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (Emphasis added). We explained in United States v. Everage, 19 M.J. 189,192 (C.M.A. 1985), that the phrase “or otherwise” may include “slashing cross-examination” — as had occurred there. See also United States v. Medical Therapy Sciences, Inc., 583 F.2d 36 (2d Cir. 1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979); United States v. Lechoco, 542 F. 2d 84 (D.C. Cir. 1976). The attack that triggers the opportunity for rehabilitation need not take [the] form of negative character testimony. Anything that implies the untruthfulness of the witness — slashing cross-examination for example [citation omitted] — may satisfy the “or otherwise” language of the Rule. S. Saltzburg, L. Schinasi, and D. Schlueter’s Military Rules of Evidence Manual 288 (1981). The means by which credibility has been attacked is immaterial, because it would be illogical to hold that the right to rehabilitate a witness depends on the manner in which his truthfulness was impugned. Presumably, trial counsel relied on Mil.R. Evid. 608(a)(2) in offering the testimony of Chief Sands to bolster Wilson’s credibility. Because Allard himself had averred that Wilson was lying, there can be little doubt that the defense was attacking his credibility. Indeed, in this type of case — as trial counsel’s final argument makes clear — typically the chief issue for the factfinder will be the respective credibility of the prosecution witness and the accused. Thus, the Government was entitled to rehabilitate its sole witness. Once this evidence as to Wilson’s veracity had been introduced by the Government, the military judge should have recognized that appellant’s credibility was equally in issue. As should have been apparent then, the prosecutor" }, { "docid": "14962098", "title": "", "text": "not automatically create the right to offer evidence to bolster his credibility. United States v. Jackson, 588 F.2d 1046 (5th Cir.), cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). Further, the mere fact that conflicts between his testimony and other evidence are exposed during cross-examination does not by itself constitute an attack upon his character for truth and veracity sufficient to allow bolstering evidence. Id.; Kauz v. United States, 188 F.2d 9 (5th Cir. 1951). See also United States v. Danehy, 680 F.2d 1311 (11th Cir. 1982); United States v. Angelini, 678 F.2d 380, 382 n.1 (1st Cir. 1982). However, if specific instances of a witness’ misconduct are “inquired into on cross-examination” in order to attack his credibility, see Mil.R.Evid. 608(b), rehabilitation of the witness by evidence of his truthfulness would seem to be authorized by MiLR.Evid. 608(a). Otherwise, a distinction would be created between impeachment by evidence of a witness’ conviction, admitted under Mil.R.Evid. 609 to attack his credibility, and evidence of his misconduct which the military judge allows to be elicited from the witness on cross-examination for the purpose of attacking his credibility. Such a distinction would be illogical because the misconduct admitted on cross-examination — although not the subject of a criminal conviction — might have at least as much tendency to impeach credibility as some prior convictions that would be admissible under Mil.R.Evid. 609. According to several leading commentators, a “slashing cross-examination” may be sufficient to qualify as an attack on credibility under the “or otherwise” lan guage of Mil.R.Evid. 608(a)(2). See McCormick’s Handbook of the Law of Evidence § 49 at 104 (E. Cleary 2d ed. 1972); Saltzburg, et al., supra at 288. Thus, when the tenor of cross-examination can be characterized as an attack on the witness’ veracity, evidence of his truthful character may be offered to rehabilitate the witness. United States v. Medical Therapy Sciences, Inc., 583 F.2d 36 (2d Cir. 1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979). In applying these precepts, we are reminded of the words of Justice Frankfurter in Universal" }, { "docid": "2785459", "title": "", "text": "Rule of Evidence 608 governs. United States v. Danehy, 680 F.2d 1311, 1314 (11th Cir.1982); United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir.), cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). Under Rule 608, evidence of a truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Vigorous cross examination and/or the fact that a witness is contradicted by other evidence in the case does not constitute such an attack. United States v. Danehy, 680 F.2d at 1314; United States v. Jackson, 588 F.2d at 1055. As appellant’s character for truthfulness was never attacked by the government, the testimony of McElroy was properly excluded. Moreover, although Rule 608 imposes no requisite of long acquaintance or recent information about the witness (leaving such information to be elicited on cross examination) for opinion testimony as to a witness’s- character for truthfulness, it is questionable whether the testimony of a polygraphist as to a person’s truthfulness, which is based upon the results of the polygraph test, is truly opinion testimony within the meaning of Rule 608. United States v. Earley, 505 F.Supp. 117, 120 (S.D.Iowa), aff'd on other grounds, 657 F.2d 195, 198 (8th Cir.1981) (polygraphist expresses his opinion only as to whether the subject of the polygraph examination spoke truthfully or untruthfully on the specific occasion of the polygraph examination not as to the subject’s character for truthfulness or untruthfulness). Although appellant specifically states that he is not challenging the trial court’s refusal to admit the polygraph results, as the trial judge pointed out in refusing to allow the testimony, allowing McElroy to testify as to appellant’s truthfulness seems to be an “incorrect way of putting in the results of his polygraph testing,” which pertained to events at issue in the trial. Cf. Barrel of Fun, Inc. v. State Farm Fire & Casualty Co., 739 F.2d 1028, 1033 (5th Cir.1984) (testimony relating results of psychological stress evaluation from person who administered test was properly excluded but court should also have excluded opinion testimo" }, { "docid": "1389608", "title": "", "text": "unduly prejudicial because it was inflammatory and because its use was calculated to arouse moral indignation by demonstrating that he had attempted to commit bigamy. The district court denied Beros’s motion and allowed the government to use evidence of this false statement to impeach Beros’s character in its cross-examination of him and to examine his character witnesses regarding their knowledge of the incident. The propriety of the district court’s exercise of discretion in this matter is too evident to merit much discussion. The Federal Rules of Evidence clearly provide that evidence regarding specific instances of conduct relevant to a defendant’s character is permissible on cross-examination where the defendant has put his or her character in question by his or her testimony or through that of a witness presented by the defendant, or where the issue of his credibility is an essential element of the charged offense. See Federal Rules of Evidence 608(b) and 405(b). It cannot be disputed that Beros’s character and honesty were central issues to his case. Further, when he took the stand, he subjected his credibility to scrutiny as do all witnesses. See United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir.), cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). The evidence in question was therefore certainly admissible, subject only to a discretionary decision by the district court to exclude it. Beros correctly notes that a proper limit upon the admission of relevant character evidence is imposed in instances where the probative value of the evidence is outweighed by its prejudicial impact. See Fed. R.Evid. 403. This case, however, does not present such an instance. The evidence in question may well have tended to demonstrate Beros’s capacity for untruthfulness, but that is the legitimate purpose for which it was offered. We are aware that the detriment to his credibility that Beros suffered as the result of the admission of this evidence may have been great, given the magnitude of his attempted falsehood. We are unpersuaded, however, that because of this significance the evidence should have been excluded. We agree with the district" }, { "docid": "23375365", "title": "", "text": "error. Cf. Michelson v. United States, 335 U.S. at 476, 69 S.Ct. at 218 (evidence of good character may in itself raise a reasonable doubt as to defendant’s guilt). We therefore remand for a new trial. Vacated and remanded. . As guidance for the district court on retrial, we note our rejection of Angelini’s argument that he should have been permitted to introduce evidence of his character for truthfulness. If not pertinent to the crime charged — and An-gelini does not argue that it is — such evidence is admissible “only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.” Fed.R.Evid. 608(a). The mere fact that an accused takes the stand does not give him the right to present character evidence supporting his veracity. United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir.), cert, denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). Nor does contradiction of a witness, even the accused, necessarily require the admission of proffered evidence for truthfulness. Id. The cross-examination of Angelini conducted here could hardly be characterized as so “slashing,” McCormick, Evidence § 49, at 104, as to constitute an attack on credibility under Rule 608. While the retrial may take a different course, necessitating a different approach by the presiding judge, we see no error in the exclusion of the evidence under the circumstances which obtained at the trial now under consideration." }, { "docid": "23103883", "title": "", "text": "bias or interest which do not involve the issue of moral character until an extreme form of corruption has been reached. 3A Wigmore, Evidence, § 977 (Chadbourn rev. 1970); 4 Id., § 1107 (Chadbourn rev. 1972). The vigorous cross-examination of Watson by the defense, however, may have gone beyond a mere revelation of Watson’s self-interest to a generalized attack on his character for truthfulness. By use of impeaching questions pointing to individual incidents of previous misconduct on Watson’s part for which he received little if any penalty, the defense perhaps did more than simply insinuate that Watson was a professional drug dealer with a corrupt character who in past cases as well as the present one protected himself by adeptly “cutting deals” with the government, i. e., offering fabricated testimony in exchange for a lesser charge or none at all. While evidence of good character for truth is logically relevant to meet an impeachment accomplished through a slashing cross-examination carrying strong accusations of misconduct and bad character, which, as here, the witness’ denial would not remove from the jury’s mind, we are unconvinced that admission of Agent Bloch’s testimony was authorized. But even if the admission constituted a technical violation of Rule 608(b), we are satisfied that it was not so prejudicial as to require reversal. Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946); United States v. Stabler, 490 F.2d 345 (8th Cir. 1974); Fed.R.Crim.Proc. 52(a). See Homan v. United States, 279 F.2d 767 (8th Cir. 1960); Kauz v. United States, 188 F.2d 9 (5th Cir. 1951). In this connection we have noted the vigor of the cross-examination of Watson and we note that the trial judge prevented unnecessary elaboration by Agent Bloch after Bloch’s point had been made before the jury. And finally we note that while Watson’s credibility was the subject of oral argument to the jury, the argument was unobjectionable and unobjected to. VI Defendant Scholle finally protests the introduction into evidence of the computer printouts and the accompanying testimony of Donald Johnson, Section Chief of the Investigative Service Section of" }, { "docid": "14962097", "title": "", "text": "official statement, it did not bear directly on her guilt or innocence of the alleged possession of marihuana and drug paraphernalia. See United States v. Yarborough, 18 M.J. 452, 457 (C.M.A. 1984). Therefore, this evidence of Everage’s truthful character did not qualify for admission under Mil.R.Evid. 404. Instead, as the trial participants recognized, the appropriate rule was Mil.R.Evid. 608(a), which concerns evidence of a witness’ character for truth and veracity. Obviously, the use of the phrase “or otherwise” in this rule reflects the drafters’ intent that evidence of truthful character of a witness may be received in evidence not only when that character has been attacked by opinion or reputation evidence but also when it has been attacked by other means. For example, impeachment of a witness by evidence of a prior conviction of crime, which is authorized by Mil.R.Evid. 609(a) “[f]or the purpose of attacking the credibility of a witness,” would allow the rehabilitation of that witness by evidence of his truthful character. The fact that a witness takes the stand to testify does not automatically create the right to offer evidence to bolster his credibility. United States v. Jackson, 588 F.2d 1046 (5th Cir.), cert. denied, 442 U.S. 941, 99 S.Ct. 2882, 61 L.Ed.2d 310 (1979). Further, the mere fact that conflicts between his testimony and other evidence are exposed during cross-examination does not by itself constitute an attack upon his character for truth and veracity sufficient to allow bolstering evidence. Id.; Kauz v. United States, 188 F.2d 9 (5th Cir. 1951). See also United States v. Danehy, 680 F.2d 1311 (11th Cir. 1982); United States v. Angelini, 678 F.2d 380, 382 n.1 (1st Cir. 1982). However, if specific instances of a witness’ misconduct are “inquired into on cross-examination” in order to attack his credibility, see Mil.R.Evid. 608(b), rehabilitation of the witness by evidence of his truthfulness would seem to be authorized by MiLR.Evid. 608(a). Otherwise, a distinction would be created between impeachment by evidence of a witness’ conviction, admitted under Mil.R.Evid. 609 to attack his credibility, and evidence of his misconduct which the military judge allows to" }, { "docid": "14962099", "title": "", "text": "be elicited from the witness on cross-examination for the purpose of attacking his credibility. Such a distinction would be illogical because the misconduct admitted on cross-examination — although not the subject of a criminal conviction — might have at least as much tendency to impeach credibility as some prior convictions that would be admissible under Mil.R.Evid. 609. According to several leading commentators, a “slashing cross-examination” may be sufficient to qualify as an attack on credibility under the “or otherwise” lan guage of Mil.R.Evid. 608(a)(2). See McCormick’s Handbook of the Law of Evidence § 49 at 104 (E. Cleary 2d ed. 1972); Saltzburg, et al., supra at 288. Thus, when the tenor of cross-examination can be characterized as an attack on the witness’ veracity, evidence of his truthful character may be offered to rehabilitate the witness. United States v. Medical Therapy Sciences, Inc., 583 F.2d 36 (2d Cir. 1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979). In applying these precepts, we are reminded of the words of Justice Frankfurter in Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 489, 71 S.Ct. 456, 465, 95 L.Ed. 456 (1951): “The difficulty is that we cannot escape, in relation to this problem, the use of undefined defining terms.” Clearly, there is no finiteness to words such as “or otherwise,” as used in the context of this rule, or “slashing,” as used to modify “cross-examination.” Moreover, cross-examination can be extensive and nevertheless not constitute an attack on a witness’ veracity. The cross-examiner may instead be seeking to establish that, although the witness is well-intentioned and seeks to tell the truth, his observation of events was faulty, his memory is poor, or his testimony on direct examination was ambiguous. The question whether a witness’ testimony may be bolstered by evidence of his truthful character can arise with re-' spect to government or defense witnesses. The rules governing admissibility are the same in either instance, and they apply fully to an accused who takes the stand. Of course, if evidence offered by the defense is excluded because of a" }, { "docid": "15053042", "title": "", "text": "appellant’s truthful character. Defense counsel argued that, because appellant’s and Wilson’s testimony were contradictory, appellant’s credibility had been attacked. Moreover, appellant would be prejudiced if he were not allowed to offer a character witness as to his veracity, because the Government had been allowed to bolster Wilson’s credibility with the character testimony of Chief Sands. The military judge excluded this evidence on the ground that it would be improper to bolster Allard’s credibility “absent some extrinsic attack or scathing cross-examination of the accused.” In his closing argument, trial counsel contended that Allard’s version of events “just is not credible,” but “[t]he scenario set forth by Wilson is credible.” Elaborating on this point, he noted later in his rebuttal argument that a one-on-one drug buy by its very nature requires the court believe one or the other people who testified. The government believes that the story put forth by Wilson is credible, that Wilson is a credible witness, and, in fact, what occurred— what he’s testified occurred, in fact, occurred.[ ] And again, it’s the question of credibility between the two people who testify. Again, a one-on-one transaction, it’s not expected that the government bring in 132 witnesses who would have seen the transactions go down. By its very nature, it’s only the informant against the person who sold the marihuana ____ II According to Mil.R.Evid. 608(a)(2), evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. (Emphasis added). We explained in United States v. Everage, 19 M.J. 189,192 (C.M.A. 1985), that the phrase “or otherwise” may include “slashing cross-examination” — as had occurred there. See also United States v. Medical Therapy Sciences, Inc., 583 F.2d 36 (2d Cir. 1978), cert. denied, 439 U.S. 1130, 99 S.Ct. 1049, 59 L.Ed.2d 91 (1979); United States v. Lechoco, 542 F. 2d 84 (D.C. Cir. 1976). The attack that triggers the opportunity for rehabilitation need not take [the] form of negative character testimony. Anything that implies the untruthfulness of the witness — slashing cross-examination for example [citation omitted] —" }, { "docid": "18913935", "title": "", "text": "military judge, agreeing with the prosecution’s objection, ruled that there had been no attack on the accused’s credibility permitting such character evidence favoring the accused. We believe the decision in United States v. Jackson, 588 F.2d 1046, 1055 (5th Cir. 1979) is apposite. There, the defendant was convicted of violating Federal narcotics laws. Rule 608, Federal Rules of Evidence, which exactly parallels Mil.R.Evid. 608, was at issue. The Court reasoned: Furthermore, when Jackson elected to take the stand at his trial he did not automatically acquire the right to bolster his credibility. Where an accused takes the stand as a witness he places his credibility in issue as does any other witness. If the prosecution chooses to attack his credibility, he may then introduce evidence of his good character for truthfulness and veracity: The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness had been attacked by opinion or reputation evidence or otherwise. Fed.R.Evid. 608 (emphasis added). We find no evidence of an attack upon Jackson’s character for truthfulness. During the cross-examination the government attorney questioned Jackson closely about his version of the facts and pointed out conflicts between that testimony and the testimony of other witnesses. However, “[t]he mere fact that a witness is contradicted by other evidence in the case does not constitute an attack upon his reputation for truth and veracity.” Kauz v. United States, 188 F.2d 9, 10 (5th Cir. 1951). See Homan v. United States, 279 F.2d 767, 772 (8th Cir. 1960). The district court did not err in excluding the proffered evidence. We do not find that the cross-examination of the accused as to his intent amounted in this case to an attack on his character for truthfulness by opinion, reputation or otherwise. Such is the necessary predicate under Mil.R.Evid. 608 enabling the accused to counter with evidence of his truthful" }, { "docid": "23363004", "title": "", "text": "the criminal charges of conspiracy to distribute heroin or possession of heroin, Rule 404 forbids its introduction as circumstantial evidence of innocence of those crimes. Furthermore, when Jackson elected to take the stand at his trial he did not automatically acquire the right to bolster his credibility. Where an accused takes the stand as a witness he places his credibility in issue as does any other witness. If the prosecution chooses to attack his credibility, he may then introduce evidence of his good character for truthfulness and veracity: The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Fed.R.Evid. 608 (emphasis added). We find no evidence of an attack upon Jackson’s character for truthfulness. During the cross-examination the government attorney questioned Jackson closely about his version of the facts and pointed out conflicts between that testimony and the testimony of other witnesses. However, “[t]he mere fact that a witness is contradicted by other evidence in the case does not constitute an attack upon his reputation for truth and veracity.” Kauz v. United States, 188 F.2d 9, 10 (5th Cir. 1951). See Homan v. United States, 279 F.2d 767, 772 (8th Cir. 1960). The district court did not err in excluding the proffered evidence. IV. EVIDENCE OF MISCONDUCT NOT CHARGED IN THE INDICTMENT Jackson further contends that he was entitled to a mistrial when the government elicited testimony from a prosecution witness concerning appellant’s use of cocaine, thus connecting him with criminal conduct outside the scope of the indictment. It is generally improper to introduce evidence of misconduct not charged in the indictment. See Michelson v. United States, 335 U.S. 469, 69 S.Ct. 213, 93 L.Ed. 168 (1948); United States v. Beechum, 555 F.2d 487, vacated on other grounds, 582 F.2d 898 (5th Cir. 1978). This general rule" } ]

[ { "docid": "22720525", "title": "", "text": "it, how much or to whom they sold, what type they sold, or how many dealers could sell at Jocko’s at any given time. Moreover, the dealers were free to sell drugs elsewhere. Schuh’s participation in the dealing was limited. He was not a regular dealer, although he occasionally steered customers to the dealers and sometimes sold cocaine for the others. There is no evidence that Schuh recruited accomplices, and, although Schuh received cocaine from the dealers, he never claimed a larger share of the fruits of the crime in relation to the dealers. Therefore, because Schuh played no greater role in the offense than any of the other participants, see Must-read, 42 F.3d at 1103, we vacate Schuh’s sentence and remand for resentencing without an adjustment for being an organizer or leader. B. Lisa Nolen and Curtis Lane The attorneys for Nolen and Lane each move to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), arguing that there are no non-frivolous grounds for appeal. We invited Nolen and Lane to respond to their attorney’s respective motion, see Cir. R. 51(b), but only Lane replied. Thus, we confine our review of the record to the potential issues raised in each attorney’s facially-adequate brief and Lane’s Rule 51(b) response. ' United States v. Tabb, 125 F.3d 583, 584 (7th Cir.1997) (per cu-riam). 1. Nolen Nolen’s counsel first considers whether Nolen may argue that her guilty plea was not knowing and voluntary, but concludes that such an argument would be frivolous because the district court complied with Federal Rule of Criminal Procedure 11. Nolen did not move to withdraw her guilty plea, so we would review her Rule 11 plea colloquy only for plain error. See United States v. Vonn, — U.S. -, -, 122 S.Ct. 1043, 1046, 152 L.Ed.2d 90 (2002). Although we note one Rule 11 omission — the court failed to inform her of the effect of supervised release — it would not constitute plain error because Nolen’s 70-month prison term, when combined with her 3-year term of supervised release, is still" } ]

[ { "docid": "8625661", "title": "", "text": "PER CURIAM. Hubert Davenport decided to show off his gun to his friends at a bar one night. A bar employee observed him and called the police, and Mr. Davenport, a felon on probation, was arrested and charged with violating 18 U.S.C. § 922(g)(1). He pleaded guilty and was sentenced as an armed career criminal to 192 months’ imprisonment. See id. § 924(e). Mr. Davenport then filed a notice of appeal, but his appointed lawyer contends that the appeal is frivolous and seeks to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Davenport has not responded to counsel’s submission. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel begins by addressing whether Mr. Davenport could challenge his conviction. Although she neglects to say whether she complied with this court’s requirement that she first ask him whether he wants his guilty plea set aside, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002), this omission does not mean that we must deny the Anders motion. If the transcript of the plea colloquy shows that a challenge to the voluntariness of the plea would be frivolous, the motion may be granted. See Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. A challenge to the voluntariness of a guilty plea necessarily is frivolous if the district court substantially complied with Federal Rule of Criminal Procedure 11 when accepting the plea. Konczak, 683 F.3d at 349-50; Schuh, 289 F.3d at 974. And our review of Mr. Davenport’s plea colloquy would be even more deferential— confined to a search for plain error — because he did not move in the district court to withdraw his guilty plea. See United States v. Vonn, 535 U.S. 55, 62-63, 122 S.Ct. 1043, 152 L.Ed.2d 90 (2002); United States v. Kilcrease, 665 F.3d 924, 927 (7th Cir.2012). An error is not plain unless it is obvious," }, { "docid": "12505447", "title": "", "text": "PER CURIAM. While on probation for a state drug conviction, Mashica Spann met Carlos Hoffman in court-mandated group therapy and joined his heroin-distribution ring. She was indicted in federal court for her role in the operation and pleaded guilty to conspiracy to distribute heroin, see 21 U.S.C. §§ 846, 841(a)(1), a crime that presumptively mandated a minimum prison term of five years because the conspiracy involved 100 or more grams, id. § 841(b)(1)(B). After rejecting Spann’s argument that she was a minimal or minor participant in the crime, see U.S.S.G. § 3B1.2, the district court calculated her guidelines imprisonment range as 57 to 71 months without the mandatory minimum, which made the applicable range 60 to 71 months, see U.S.S.G. § 5Gl.l(c)(2); United States v. Gonzalez, 534 F.3d 613, 615 (7th Cir.2008). But the government moved for a sentence below the mandatory minimum, citing Spann’s substantial assistance in the investigation of Hoffman and others. See 18 U.S.C. § 3553(e). The court granted the motion and sentenced Spann to 24 months, less than half of the mandatory minimum and more than a year below the government’s most favorable recommendation. Spann filed a notice of appeal, but her appointed counsel has concluded that the appeal is frivolous and seeks permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Spann has not accepted our invitation to comment on counsel’s facially adequate submission. See Cir. R. 51(b). We limit our review to the potential issues that counsel discusses. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Spann does not want her guilty plea set aside, so counsel properly forgoes discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel first considers arguing that the district court undervalued Spann’s cooperation and did not shave enough time from the statutory minimum. But valuing substantial assistance given as part of a cooperation agreement under 18 U.S.C. § 3553(e) is a matter within the sentencing court’s discretion, and thus counsel rightly concludes" }, { "docid": "2770410", "title": "", "text": "him to pay a $1500 fine and a special assessment of $100. His counsel filed a timely notice of appeal. On appeal, however, his counsel has filed an Anders brief, stating that there, are no non-fiivolous issues for appeal, and a motion to withdraw. Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pursuant to Circuit Rule 51(a), Scott was informed of his counsel’s actions and his right to respond. Scott has filed no response to either the motion to withdraw or the An-ders brief. At his sentencing, Scott did not dispute the amount of cocaine base attributed to him by the pre-sentence report (150-500 grams, for a base offense level of 34). U.S.S.G. § 2Dl.l(c)(3). Scott challenged only the constitutionality of the Sentencing Guideline’s drug quantity tables for cocaine base, relative to the treatment of other drugs. As his counsel acknowledges on appeal, we have previously rejected this argument, see, e.g., United States v. Lawrence, 951 F.2d 751, 754-55 (7th Cir.1991); United States v. Scott, 19 F.3d 1238, 1246 (7th Cir.), cert. denied, - U.S. -, 115 S.Ct. 163, 130 L.Ed.2d 101 (1994). We see no reason to revisit the question here and agree with Scott’s counsel that any appeal on this issue would be “groundless in light of legal principles and decisions.” United States v. Eggen, 984 F.2d 848, 850 (7th Cir.1993). On the other hand, we are not convinced of counsel’s submission that Scott’s guilty plea as to his 924(c) conviction was unquestionably taken in compliance with Rule 11. The government's proffer of proof on this count consisted only of the fact that “in connection with the conspiracy alleged in the indictment” Scott “possessed numerous firearms.” In light of the holding in Bailey, this may well be an insufficient factual basis and additionally not an accurate statement of what the government must prove in order to obtain a 924(c) conviction. Therefore we are unable to conclude that it would be frivolous to argue that Scott’s 924(c) plea was not entered into knowingly. Accordingly, we grant present counsel’s motion to withdraw, but direct that" }, { "docid": "23630581", "title": "", "text": "See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Curry did not respond to counsel’s facially adequate brief. See Cir. R. 51(b). We limit our review to the potential issues counsel discusses. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Curry has any non-frivolous arguments to challenge his conviction. Since Curry does not seek to challenge his guilty plea on appeal, counsel properly declines to address any plea-related issues in his Anders brief. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Counsel does consider, however, whether Curry has any non-frivolous arguments challenging his sentence. He properly concludes that Curry has none. First, Curry’s within-guideline, 210-month sentence did not constitute a violation of law where it did not exceed the statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989), and where nothing in the record indicates that the district court violated Curry’s equal protection, due process, or other constitutional rights, see, e.g., United States v. Moore, 543 F.3d 891, 895-96 (7th Cir.2008) (discussing a “class of one” equal protection claim). See 18 U.S.C. 3742(a)(1) (permitting defendants to appeal a final sen tence that “was imposed in violation of law”)- Next, the district court committed no procedural errors when applying the sentencing guidelines to determine Curry’s sentence: It properly calculated the guidelines range, treated the guidelines as discretionary, considered the factors in § 3553(a), selected a sentence based on appropriate facts, and adequately explained the sentence it imposed. See Call, 552 U.S. at 51, 128 S.Ct. 586. Finally, Curry’s within-guide line sentence is not substantively unreasonable. See United States v. Rivera, 463 F.3d 598, 602 (7th Cir.2006) (“A sentence, such as this, that falls within a properly calculated Guidelines’ range is entitled to a rebuttable presumption of reasonableness.... [I]t will be a rare Guidelines sentence that is unreasonable.” (internal quotation marks and citations omitted)). We grant counsel’s request. III. Conclusion For the foregoing reasons, we Affirm the district court’s judgment and Grant Curry’s counsel’s request to withdraw and" }, { "docid": "5214969", "title": "", "text": "375 (7th Cir.2002); United States v. Emerson, 501 F.3d 804, 813 (7th Cir.2007); United States v. Thornton, 197 F.3d 241, 250 (7th Cir.1999). One technique that might prevent such testimony from coming out in open court would be to have the court directly inform or remind the witness about the prohibited testimony before the witness testifies, outside the presence of the jury. The court could also advise the witness that she may request a sidebar or recess if the witness believes that honestly answering a question would require her to give the prohibited testimony. Then if such a question arises, the witness can request a sidebar or recess, the issue can be fully discussed outside the jury’s presence, and a preemptive solution, such as a reformulated question, might be worked out. II. Wampler pleaded guilty to conspiring to distribute heroin. But after reviewing a presentence report incorrectly labeling him as a career offender, he moved to withdraw his guilty plea. The district court denied this motion and imposed a below-guidelines prison sentence of 151 months. Wampler filed a notice of appeal, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wampler has responded to counsel’s motion, see Cir. R. 51(b), and we limit our review to counsel’s facially adequate brief and Wampler’s response, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Wampler’s appointed counsel fails to note in his Anders submission that Wam-pler waived his right to appeal. Unless there is reason to question the validity of Wampler’s appeal waiver, that waiver is dispositive here. An appeal waiver stands or falls with the underlying guilty plea, United States v. Kilcrease, 665 F.3d 924, 929 (7th Cir.2012); United States v. Henry, 702 F.3d 377, 380 (7th Cir.2012); United States v. Sakellarion, 649 F.3d 634, 638-39 (7th Cir.2011), but counsel does not say if he asked Wampler whether he wants to challenge his guilty plea, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v." }, { "docid": "14583960", "title": "", "text": "and sentence him at the low end of the guidelines’ range. The district judge explained that he disagreed with the parties’ stipulated offense level — which differed from the probation officer’s recommendation' — because it improperly rewarded King for accepting responsibility, see U.S.S.G. § 3E1.1, and did not include a two-level upward adjustment for unauthorized use of another person’s identifying information, see id. § 2B1.1(b)(10)(C)(I). The district judge also doubted whether King’s criminal history category, which he anticipated would be either II or III, would account adequately for King’s lifelong pursuit of fraud. The court concluded that a sentence within the parties’ proposed range would be too low to achieve the sentencing goals enumerated in 18 U.S.C. § 3553(a), particularly the need to provide adequate deterrence and to protect the public from King’s future crimes, see id. § 3553(a)(2)(B), (C). Those are sound reasons to reject the plea agreement, see, e.g., Martin, 287 F.3d at 624, and thus we agree with counsel that it would be frivolous to argue that the district court abused its discretion. Counsel and King next consider whether King could challenge the court’s finding that he obstructed justice by attempting to flee while on pretrial release. See U.S.S.G. § 3C1.1. Counsel notes that we would overturn the finding only if it is clearly erroneous. See United States v. Davis, 442 F.3d 1003, 1008 (7th Cir.2006). King says he could challenge the adjustment on the grounds that he was not strictly “in custody” when he neglected to return to a community-correction center, nor did he fail to appear at a court hearing. Cf. United States v. Scott, 405 F.3d 615, 617-18 (7th Cir.2005). But the district court explained that King deserved the adjustment because he absconded for two months, obtained a driver’s license by using a stolen social security number, used that false identity to purchase a car, and packed that car with all of his personal belongings — behavior the judge sensibly read as an attempt to elude justice. See U.S.S.G. § 3C1.1 cmt. n. 4(e); United States v. Porter, 145 F.3d 897, 903-04 (7th Cir.1998)." }, { "docid": "22655600", "title": "", "text": "W. EUGENE DAVIS, Circuit Judge: Defendant Ramona Flores appeals after her guilty plea conviction for being found illegally in the United States after having been previously deported, in violation of 8 U.S.C. § 1326. Flores’ counsel has filed a motion to withdraw and a brief that relies on Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), stating that the appeal is without merit. We grant the motion and take this opportunity to explain what we expect in an Anders brief and why the brief in this case is sufficient. I. Nicaraguan national Ramona Flores pleaded guilty, pursuant to a written plea agreement, to being found illegally in the U.S. after having been previously deported, in violation of 8 U.S.C. § 1326. The plea agreement did not contain an appeal waiver. The factual basis that Flores admitted to be true at rearraignment stated that she previously was deported from the U.S. on May 10, 2006, and that she was again found inside the U.S. on July 8, 2009. See United States v. Rojas-Luna, 522 F.3d 502, 504-06 (5th Cir.2008) (holding that the fact of removal must be admitted or proven beyond a reasonable doubt). The PSR calculated Flores’ total offense level at 21. This included a 16-level increase, pursuant to U.S.S.G. § 2L1.2(b)(1)(A)(ii), because she had previously been deported following a felony conviction for a crime of violence, specifically, a December 2000 Florida conviction for aggravated assault with a deadly weapon. It determined Flores’ criminal history score to be III, subjecting her to a guidelines range of 46 to 57 months of imprisonment. Flores did not object to the PSR’s calculations. The district court sentenced her at the low end of the guidelines range, 46 months, followed by a three-year period of supervised release. Flores timely appealed. II. The Federal Public Defender appointed to represent Flores has filed a motion for leave to withdraw and an Anders brief. Anders established standards for a court-appointed attorney who seeks to withdraw from a direct criminal appeal on the ground that the appeal lacks an issue of arguable merit." }, { "docid": "22351804", "title": "", "text": "WOOD, Circuit Judge. Campus police officers at Lakeland Community College in Mattoon, Illinois, observed Chad Konczak using publicly available computer terminals to download sexually explicit photos of young girls. Konczak was arrested and pleaded guilty to accessing an Internet website for the purpose of viewing child pornography on that site, 18 U.S.C. § 2252A(a)(5)(b). The district court calculated an advisory guidelines imprisonment range of 41 to 51 months and sentenced Konczak to 45 months. Konczak has now filed a notice of appeal, but his appointed lawyer seeks to withdraw on the ground that all possible arguments are frivolous. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Konczak opposes counsel’s motion. See Cir. R. 51(b). We confine our review to the potential issues identified in counsel’s facially adequate brief and Konczak’s response. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Konczak could challenge the adequacy of the plea colloquy or the voluntariness of his guilty plea. It is unclear, however, whether counsel has discussed a challenge to the plea with Konczak. In United States v. Knox, 287 F.3d 667 (7th Cir. 2002), we held that counsel “should not present (or even explore in an Anders submission) a Rule 11 argument unless they know after consulting their clients, and providing advice about the risks, that the defendant really wants to withdraw the guilty plea.” Id. at 671 (emphasis added). Some of our nonprecedential orders might be read to indicate that the burden rests on the client to alert counsel about his desire to withdraw the plea, but that is not what Knox said (and those orders are expressly nonprecedential in any event). See, e.g., United States v. Potts, 456 Fed.Appx. 602 (7th Cir.2012); United States v. Arguijo-Cervantes, 461 Fed.Appx. 513, 2012 WL 475928 (7th Cir. Feb. 15, 2012); United States v. Nunez-Garcia, 455 Fed. Appx. 698 (7th Cir.2012). Knox instructs counsel both to consult with the client and to provide advice about the risks and benefits of any proposed course of action. Only if, after counsel has taken that" }, { "docid": "6971314", "title": "", "text": "three mitigating factors noted above. We disagree. It’s true that Vizearra did not plan the kidnapping, but his role can hardly be characterized as minor. He forcibly abducted the victim, drove her across state lines, and stood watch during her two days of captivity. Nothing about his participation suggests that he specially qualifies for leniency. The second two factors are related and rely largely on inferences that might be drawn from Vizcarra’s limited criminal history. But the judge adjusted the guidelines range to account for Vizcarra’s insignificant criminal record, dropping him from criminal-history category II to criminal-history category I. The court thus gave some weight to Vizcarra’s argument that his involvement in the kidnapping was aberrational and that a shorter prison term would suffice as a deterrent. In the end, the judge was primarily concerned about the severely aggravated nature of the crime — and justifiably so. The 168-month sentence — at the low end of the advisory range — is presumed reasonable, and Vizearra has not overcome the presumption. B. Rogelio Aguirre’s Appeal Aguirre’s appointed counsel filed an Anders brief and moved to withdraw after concluding that his appeal presents no nonfrivolous issues. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Aguirre did not initially respond, but we allowed him to file a late response. Counsel first notes that Aguirre did not seek to withdraw his guilty plea in the district court. In his belated response, Aguirre confirms that he does not want to withdraw his plea; counsel therefore properly limited his inquiry to possible sentencing challenges. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002) (counsel should not explore possible Rule 11 challenges in an Anders brief in the absence of a request by the defendant to withdraw his guilty plea). Counsel notes that in his plea agreement, Aguirre accepted the PSR’s guidelines calculations and reiterated at sentencing that he had no challenge to those calculations; any challenge to the court’s calculation of the advisory range would therefore be frivolous. Finally, counsel notes that although a below-guidelines sentence would have" }, { "docid": "21476984", "title": "", "text": "as well that the 30-month sentence Sura received (three months less than the low end of the advisory range the judge used) is twice as long as the high end of the 9- to 15-month range that would have applied if the judge had found him eligible for the sporting-use discount. This, too, supports a find ing that Sura’s substantial rights were affected by the error. To complete the plain error analysis, we must consider whether this particular error seriously affects the fairness, integrity, or public reputation of the judicial proceedings. Again, we find the Sixth Circuit’s analysis in Murdock persuasive. That court concluded that “[t]he right to appeal, while not of constitutional dimension, ... is nonetheless of critical importance to a criminal defendant.” 398 F.3d at 498. It added that “[w]e agree with the Ninth Circuit’s approach and conclude that, given the ‘wholesale failure’ to ascertain that Murdock understood the waiver provision, ‘the enforcement of the waiver in these circumstances would seriously affect the fairness, integrity and public reputation of our plea proceedings.’ ” Id. (citing Arellano-Gallegos, 387 F.3d at 797). Although we enforce knowing and voluntary plea waivers, this court has observed that “there is a risk that appeal waivers do nothing but cut off potentially meritorious arguments ... for direct appeal.” Whitlow, 287 F.3d at 642. Responsible counsel, faced with nothing but frivolous arguments for appeal, will choose to file an Anders brief, see Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and suggest to the court that an appeal should be dismissed. However, even in those cases, this court has held that if a defendant tells a lawyer to appeal and the lawyer drops the ball, then the defendant has been deprived of his Sixth Amendment right to assistance of counsel. See Castellanos v. United States, 26 F.3d 717, 718-19 (7th Cir.1994). When a lawyer has failed to file notice of appeal upon her client’s request, we routinely grant motions under 28 U.S.C. § 2255 and allow the appeal process to go forward. See Rodriquez v. United States, 395 U.S. 327," }, { "docid": "23630580", "title": "", "text": "The district court weighed Vallar’s testimony against the government agents’ and concluded that Vallar lacked credibility. We find no clear error in this conclusion. See United States v. Ofcky, 237 F.3d 904, 910 (7th Cir.2001) (affirming the application of an obstruction enhancement “where the trial judge weighed the testimony of the defendant against that of others and determined that the defendant’s testimony lacked credibility.”); see also United States v. Pedigo, 12 F.3d 618, 628-29 (7th Cir.1993). We affirm the district court’s application of the obstruction enhancement. G. Anders Brief in the Case of Tyrail Curry Curry pled guilty to Count One, the conspiracy charge, on September 6, 2006. He admitted to participating in Iniguez’s drug enterprise by assisting in the receipt and distribution of cocaine in Kentucky. The district court sentenced Curry to 210 months of imprisonment, the lowest within-guidelines sentence, and five years of supervised release. Curry’s counsel, a Federal Public Defender in the Central District of Illinois, concludes that Curry’s case is without merit and submits an Anders brief seeking permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Curry did not respond to counsel’s facially adequate brief. See Cir. R. 51(b). We limit our review to the potential issues counsel discusses. United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Counsel first considers whether Curry has any non-frivolous arguments to challenge his conviction. Since Curry does not seek to challenge his guilty plea on appeal, counsel properly declines to address any plea-related issues in his Anders brief. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Counsel does consider, however, whether Curry has any non-frivolous arguments challenging his sentence. He properly concludes that Curry has none. First, Curry’s within-guideline, 210-month sentence did not constitute a violation of law where it did not exceed the statutory maximum sentence of life, 21 U.S.C. § 841(b)(1)(A); United States v. Franz, 886 F.2d 973, 977 (7th Cir.1989), and where nothing in the record indicates that the district court violated Curry’s equal protection, due process, or other constitutional rights, see, e.g.," }, { "docid": "23571427", "title": "", "text": "PER CURIAM. Immigration officials caught up with Clemente Cano-Rodriguez, a Mexican citizen, while he was serving time for a drug conviction in an Illinois state prison. Unfortunately for Cano-Rodriguez, he had been deported once before, and so upon his release from state prison he was charged in federal court and pleaded guilty to being in the United States without permission. See 8 U.S.C. § 1326(a). Cano-Rodriguez appeals, but his appointed lawyer has moved to withdraw because he cannot discern any nonfrivolous argument to pursue. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493(1967). Cano-Rodriguez was notified about counsel’s motion, see Cir. R. 51(b), and he responded by requesting the appointment of new counsel. Counsel’s supporting brief is facially adequate, so we limit our review to the potential issues he identifies. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). At sentencing, Cano-Rodriguez argued that the district court should decline to assess him an additional two criminal history points for committing his immigration crime while in prison. See U.S.S.G. § 4Al.l(d). Cano-Rodriguez asserted that DEA agents participated in the investigation that led to his state drug conviction, and so federal authorities should have immediately charged him with violating § 1326(a) instead of waiting for his state sentence to expire. The court rejected this argument, observing that Cano-Rodri-guez had provided no evidence whatsoever that the federal government knew from the moment of his arrest that he was in the country illegally. The court therefore began with a base offense level of 8, see U.S.S.G. § 2L1.2, and added 16 levels because Cano-Rodriguez had been deported after committing a drug trafficking offense for which he received a six-year sentence, see id. § 2L1.2(b)(l)(A). The court then subtracted three levels for acceptance of responsibility, resulting in a total offense level of 21. See id. § 3E1.1. Finally, the court added the two extra criminal history points, yielding a criminal history category of IV and an imprisonment range of 57 to 71 months. After considering the sentencing factors set forth in 18 U.S.C. § 3553(a), the court sentenced Cano-Rodriguez" }, { "docid": "23216213", "title": "", "text": "F.3d 931, 938 (7th Cir.2006); United States v. Re, 419 F.3d 582, 583 (7th Cir.2005)-and we decline this one as well. It is true that the Paladino process is a limited one in which the district court is confined to the original record, along with arguments from the parties. See United States v. Bonner, 440 F.3d 414, 417 (7th Cir.2006); Paladino, 401 F.3d at 484. But the defendants are free to submit vigorous arguments under the § 3553(a) factors, and if any of those points requires new evidence, counsel can make a proffer to the district court. If the argument is promising enough that the district court is inclined to resentence, then we will remand for full resentencing and any new evidence can be introduced at the new sentencing hearing. D. Collins’s counsel’s motion to withdraw The last matter to be settled is the motion to withdraw filed by Collins’s counsel under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Counsel contends that any appeal would be frivolous. Because his brief is facially adequate, we confine our review to the potential issues that he raises, along with those that Collins himself identifies in a response under Circuit Rule 51(b). United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Collins cooperated with the government and was rewarded with a sentence of half the bottom end of his Guidelines range. He received 180 months’ imprisonment, compared to his co-defendants’ sentences ranging from 240 months to life. Collins’s plea agreement, like Cohn’s, contains a waiver of the right to appeal. But as we noted above, a plea agreement that is entered into involuntarily or as a result of ineffec tive assistance from counsel cannot stand, and the waiver of appeal would fall with the plea agreement. Collins contends in his Rule 51(b) submission that he could raise both of these points in an appeal. Either argument, however, would be frivolous. Collins stated in open court that he understood his rights under Federal Rule of Civil Procedure 11, and that his guilty plea was knowing and voluntary. He" }, { "docid": "22604662", "title": "", "text": "McCONNELL, Circuit Judge. After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R.App. P. 34(a)(2); 10th Cir. R. 34.1(G). This case is therefore submitted without oral argument. Ivan Calderon pleaded guilty to possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine. In his plea agreement, Mr. Calderon waived his right to appeal his sentence. He was sentenced to 151 months in prison. Mr. Calderon timely appealed, and his counsel, Robert Breeze, filed an Anders brief and moved to withdraw as counsel. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Mr. Calderon then filed a response brief to the Anders brief. The government declined to submit a brief. Although we decline to enforce the appeal waiver due to the government’s failure to seek enforcement of the plea agreement, we find that Mr. Calderon’s appeal is nonetheless frivolous. Therefore, we DISMISS the appeal and GRANT Attorney Breeze’s motion to withdraw. BACKGROUND On November 2, 2004, Mr. Calderon pleaded guilty to possession with intent to distribute 500 grams or more of a mixture or substance containing methamphetamine, in violation of 21 U.S.C. § 841(a)(1) and punishable by 21 U.S.C. § 841(b)(1)(A). Under the terms and conditions of the plea agreement, the government agreed to recommend a two level reduction if defendant demonstrated an acceptance of responsibility. The government also agreed to recommend a sentence at the low end of the applicable Sentencing Guidelines range and not to seek a sentencing enhancement. As part of the plea agreement, Mr. Calderon waived his right to appeal his sentence. Under the Federal Sentencing Guidelines applicable at the time, the base level for Mr. Calderon’s offense was 36. U.S.S.G. § 2Dl.l(c)(2). Mr. Calderon was given a reduction of three levels because of his recognition of criminal conduct and assistance of authorities, giving him a total offense level of 33. No enhancements were made. According to the Presentence Report, the applicable sentencing range under the Guidelines was" }, { "docid": "5214970", "title": "", "text": "Wampler filed a notice of appeal, but his appointed lawyer has concluded that the appeal is frivolous and moves to withdraw under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Wampler has responded to counsel’s motion, see Cir. R. 51(b), and we limit our review to counsel’s facially adequate brief and Wampler’s response, see United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Wampler’s appointed counsel fails to note in his Anders submission that Wam-pler waived his right to appeal. Unless there is reason to question the validity of Wampler’s appeal waiver, that waiver is dispositive here. An appeal waiver stands or falls with the underlying guilty plea, United States v. Kilcrease, 665 F.3d 924, 929 (7th Cir.2012); United States v. Henry, 702 F.3d 377, 380 (7th Cir.2012); United States v. Sakellarion, 649 F.3d 634, 638-39 (7th Cir.2011), but counsel does not say if he asked Wampler whether he wants to challenge his guilty plea, see United States v. Konczak, 683 F.3d 348, 349 (7th Cir.2012); United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002). Although the defendant’s Rule 51(b) response is ambiguous, it appears that he wishes to challenge his guilty plea, though any challenge would be frivolous. During the plea colloquy the district court substantially complied with Federal Rule of Criminal Procedure 11. See Konczak, 683 F.3d at 349; United States v. Blalock, 321 F.3d 686, 688-89 (7th Cir.2003); United States v. Akinsola, 105 F.3d 331, 334 (7th Cir.1997). The judge explained the nature of the charge, the statutory penalties, the role of the sentencing guidelines and the judge’s discretion in applying them, the process for receiving credit for acceptance of responsibility and cooperation with the government, and the trial and appellate rights he was waiving by entering the plea. And the judge ensured that the plea was made voluntarily with neither the government nor counsel forcing him to plead guilty or assuring a specific sentence. Thus, the transcript of the plea colloquy demonstrates that Wam-pler knowingly and voluntarily pleaded guilty, and that means that his waiver is enforceable. Wampler asserts" }, { "docid": "13263094", "title": "", "text": "PER CURIAM. Ryan Maeder pleaded guilty to conspiring to rob a bank in violation of 18 U.S.C. §§ 371, 2113(a). He was sentenced to 57 months’ imprisonment, three years’ supervised release, $23,477 in restitution, and a $100 fine. Mr. Maeder’s counsel filed a notice of appeal, but we permitted him to withdraw and appointed substitute counsel. His new lawyer now moves to withdraw in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), because he cannot discern a non-frivolous issue for appeal. Because Mr. Maeder declined our invitation to file a response, see Circuit Rule 51(b), and counsel’s Anders brief is facially adequate, we limit our review of the record to the potential issues identified in the brief. See United States, v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). For the reasons set forth below, we direct counsel to either amend his brief or withdraw his motion. The facts presented during Mr. Mae-der’s plea colloquy, which he admitted were true, established the following. Mr. Maeder met with two other men, Lyle Tyson and Corey Rozowski, on August 9, 2001, to plan to rob the Bank of Drum-mond in Barnes, Wisconsin. The following day, Tyson and Rozowski robbed the bank using BB guns Mr. Maeder had given them, although Mr. Maeder was not at the bank during the robbery. Following the robbery, Tyson and Rozowski fled the bank to a cabin owned by Rozowski’s relatives. Mr. Maeder met Tyson and Rozow-ski at the cabin and gave Rozowski a ride home. In his Anders brief, counsel affirmatively represents that the district court committed no errors during its Rule 11 plea colloquy and that Mr. Maeder’s plea was “knowing and voluntary and nothing [in] the record indicates otherwise.” Thus he concludes that any challenge by Mr. Mae-der to his guilty plea on that ground would be frivolous. Our own review of the colloquy has identified two obvious errors. First, the district court failed to specifically tell Mr. Maeder that he was waiving his right to a trial by pleading guilty. Fed.R.Crim.P. 11(c)(4). Second, the district court failed" }, { "docid": "14583959", "title": "", "text": "an articulate sentencing allocution in which he described his upbringing and his reasons for absconding while on pretrial release — he even discussed a New York Times article about alternatives to prison. Given his coherent responses, along with his attorney’s unequivocal confirmation that he was competent to plead guilty, it would be frivolous for King to attempt to vacate his plea on this ground. See, e.g., Fuller, 15 F.3d at 650 & n. 4; Chichakly v. United States, 926 F.2d 624, 633-34 (7th Cir.1991). Both counsel and King raise a potential challenge to the district court’s rejection of the plea agreement King reached with the government. See Fed.R.Crim.P. 11(c)(3)(A). Counsel notes that the district court had to articulate a sound reason for rejecting the agreement, United States v. Kraus, 137 F.3d 447, 453 (7th Cir.1998), and that our review would be only for an abuse of discretion, United States v. Martin, 287 F.3d 609, 621 (7th Cir.2002). The district court rejected the agreement because it obligated the court to calculate King’s offense level as 19 and sentence him at the low end of the guidelines’ range. The district judge explained that he disagreed with the parties’ stipulated offense level — which differed from the probation officer’s recommendation' — because it improperly rewarded King for accepting responsibility, see U.S.S.G. § 3E1.1, and did not include a two-level upward adjustment for unauthorized use of another person’s identifying information, see id. § 2B1.1(b)(10)(C)(I). The district judge also doubted whether King’s criminal history category, which he anticipated would be either II or III, would account adequately for King’s lifelong pursuit of fraud. The court concluded that a sentence within the parties’ proposed range would be too low to achieve the sentencing goals enumerated in 18 U.S.C. § 3553(a), particularly the need to provide adequate deterrence and to protect the public from King’s future crimes, see id. § 3553(a)(2)(B), (C). Those are sound reasons to reject the plea agreement, see, e.g., Martin, 287 F.3d at 624, and thus we agree with counsel that it would be frivolous to argue that the district court abused its" }, { "docid": "16249022", "title": "", "text": "consent is a closer call than that of his co-tenants, we are not “left with the definite and firm conviction that a mistake has been made” by the district court, and we find no clear error in its finding that Pineda-Soria’s consent was also voluntary. Lewis, 608 F.3d at 1000 (quotation and citation omitted). Having found that the district court did not err in concluding that the consents from Pineda-Soria and the co-tenants were valid, we need not reach the question of whether the inevitable discovery doctrine would also have justified the warrant-less search. See United States v. Patterson, 65 F.3d 68, 72 (7th Cir.1995). We affirm the district court’s denial of Pineda-Soria’s motion to suppress the contraband found in his apartment and the statements he made in connection therewith. IV. ARTURO PINEDA-LOPEZ— COUNSEL’S MOTION TO WITHDRAW Arturo Pineda-Lopez was another “runner” in the conspiracy and was overheard on wiretaps delivering cocaine for Efrain Pineda-Buenaventura. Evidence showed he delivered somewhere between 500 grams and 2 kilograms of drugs. He pled guilty pursuant to a plea agreement to conspiracy to possess with intent to distribute 500 grams of cocaine, in violation of 21 U.S.C. § 846. Pineda-Lopez’s PSR determined that he had a base offense level under the sentencing guidelines of 21, after a 3-level downward adjustment based on acceptance of responsibility and a 2-level downward adjustment because he met the “safety valve” provision, 18 U.S.C. § 3553(f). Coupled with a criminal history category of I, Pineda-Lopez’s advisory guideline range was 37-46 months. At sentencing, the district court gave him the bottom of the range: 37 months. PinedaLopez’s trial counsel has filed an Anders brief seeking permission to withdraw on the basis that there are no non-frivolous arguments to be made on appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Pineda-Lopez did not respond to his counsel’s submission, and so we review the potential issues counsel has identified in his brief. See United States v. Garcia, 580 F.3d 528, 543 (7th Cir.2009). Counsel represents that Pineda-Lopez would challenge the reasonableness of his sentence by" }, { "docid": "6971315", "title": "", "text": "appointed counsel filed an Anders brief and moved to withdraw after concluding that his appeal presents no nonfrivolous issues. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Aguirre did not initially respond, but we allowed him to file a late response. Counsel first notes that Aguirre did not seek to withdraw his guilty plea in the district court. In his belated response, Aguirre confirms that he does not want to withdraw his plea; counsel therefore properly limited his inquiry to possible sentencing challenges. See United States v. Knox, 287 F.3d 667, 670-71 (7th Cir.2002) (counsel should not explore possible Rule 11 challenges in an Anders brief in the absence of a request by the defendant to withdraw his guilty plea). Counsel notes that in his plea agreement, Aguirre accepted the PSR’s guidelines calculations and reiterated at sentencing that he had no challenge to those calculations; any challenge to the court’s calculation of the advisory range would therefore be frivolous. Finally, counsel notes that although a below-guidelines sentence would have been reasonable in this case, Aguirre’s 235-month sentence — at the low end of the advisory range — is presumptively reasonable and there are no nonfrivolous arguments that might rebut that presumption. Aguirre now claims that he did not make any demands of the victim’s family and was not a leader or organizer of this kidnapping, but that conflicts with the facts he admitted when he entered his guilty plea. We agree with Aguirre’s counsel that there are no nonfrivolous arguments to pursue on appeal. For the foregoing reasons, we Affirm the judgment in Vizcarra’s case (No. 09-1174). In Aguirre’s case (No. 09-2457), we Grant counsel’s motion to withdraw and Dismiss the appeal. . We note that U.S.S.G. § 2J1.1, application note 2, was amended effective November 2011 and now explicitly provides that the enhancement in § 2B 1.1 (b)(9)(C) for violating a court order does not apply to failure to pay child support; this amendment was a response to our decision in United States v. Bell, 598 F.3d 366 (7th Cir.2010). See U.S.S.G. §" }, { "docid": "12505448", "title": "", "text": "mandatory minimum and more than a year below the government’s most favorable recommendation. Spann filed a notice of appeal, but her appointed counsel has concluded that the appeal is frivolous and seeks permission to withdraw. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Spann has not accepted our invitation to comment on counsel’s facially adequate submission. See Cir. R. 51(b). We limit our review to the potential issues that counsel discusses. See United States v. Schuh, 289 F.3d 968, 973-74 (7th Cir.2002). Spann does not want her guilty plea set aside, so counsel properly forgoes discussing the adequacy of the plea colloquy or the voluntariness of the plea. See United States v. Knox, 287 F.3d 667, 670-72 (7th Cir.2002). Counsel first considers arguing that the district court undervalued Spann’s cooperation and did not shave enough time from the statutory minimum. But valuing substantial assistance given as part of a cooperation agreement under 18 U.S.C. § 3553(e) is a matter within the sentencing court’s discretion, and thus counsel rightly concludes that an appellate claim challenging the reduction as too little would be frivolous because we lack jurisdiction to review the contention. See 18 U.S.C. § 3742(a); United States v. Thomas, 11 F.3d 732, 735 (7th Cir.1993); United States v. Shaffer, 993 F.2d 625, 628-29 (7th Cir. 1993); United States v. Dean, 908 F.2d 215, 217-18 (7th Cir.1990). Although these cases predate United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), we have explained in discussing sentence reductions under Federal Rule of Criminal Procedure 35(b) that Booker did not alter our limited jurisdiction under 18 U.S.C. § 3742(a), which is also the source of our jurisdiction here. See United States v. McGee, 508 F.3d 442, 444-45 (7th Cir.2007) (concluding that challenging extent of sentence reduction under Rule 35(b) would be frivolous); see also United States v. Chapman, 532 F.3d 625, 628 (7th Cir.2008); United States v. Parker, 543 F.3d 790, 792 (6th Cir.2008); United States v. Haskins, 479 F.3d 955, 957 (8th Cir.2007); United States v. McKnight, 448 F.3d 237, 238" } ]

[ { "docid": "1080382", "title": "", "text": "the secret of state privilege, or the doctor-patient privilege, and in the “privilege” claimed in the instant case. Stringent protection is afforded to the traditional privileges because disclosure, in itself, even outside the trial of the case, may cause harm to the parties. But such harm would not result from disclosure in the instant case. It is disclosure at trial, where a jury may improperly draw an inference of negligence, which presents the danger to the defendants, and consequently to the public. For these reasons, I conclude that the defendants have not met their burden of persuasion. The only remaining question is whether the subject-matter of the interrogatories falls within the scope of examination permitted under Rule 26 (b), Fed.R.Civ.P. Rule 26(b) provides: the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . . . It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. Id. Broad discovery is favored under Rule 26(b). See Advisory Note to Fed.R.Civ.P. 26(b); Hickman v. Taylor, 329 U.S. 495, 507-508, 67 S.Ct. 385, 91 L.Ed. 451 (1947). Furthermore, the plaintiff need not, at this stage of the proceedings, establish that the evidence sought would be admissible at trial. Reed v. Smith, Barney & Co., 50 F.R.D. 128, 130 (S.D.N.Y.1970); Brunswick Corporation v. Chrysler Corporation, 291 F.Supp. 118, 120 (E.D.Wis.1968). It is clear that the information sought in the challenged interrogatories is relevant to the subject-matter of this action. The feasibility of the installation of a better brake system and of more adequate warning systems for brake malfunctions may be significant with respect to each of the three theories relied upon by the plaintiffs. Furthermore, the knowledge of the defendants about the adequacy of the design of the loader as well as any information on this subject which may have been passed to the employer of the plaintiff may be relevant on the issues of negligence and contributory negligence. In conclusion, I" } ]

[ { "docid": "13305167", "title": "", "text": "MEMORANDUM HUYETT, District Judge. The present case is a products liability action arising out of an automobile accident. Plaintiffs have filed a motion to compel discovery seeking to obtain certain information concerning an engine mount recall campaign conducted by General Motors relating to certain vehicles manufactured by defendant. This information, plaintiffs allege, is necessary for preparation of their case. Defendant opposes the discovery as being irrelevant and not reasonably calculated to lead to the discovery of other admissible evidence. For the reasons stated below we deny plaintiffs’ motion. Fed.R.Civ.P. 34 provides that a party may be compelled to produce any materials within its custody or possession “which constitute or contain matters within the scope of Rule 26(b).” Fed. R.Civ.P. 26(b)(1) provides in pertinent part that: “Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. . It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Accordingly, we must determine whether the discovery sought by plaintiffs is relevant or is reasonably calculated to lead to other admissible evidence. In March, 1970, plaintiff Elva Uitts was operating a 1970 Chevrolet Blazer, K-10 truck which, she alleges, went out of control without any warning and swerved sharply to the left across the highway and crashed into an embankment. Plaintiffs’ theory of recovery is based upon Restatement of Torts (Second) § 402(A), alleging defective design, manufacture, testing, inspection, or assembly of the vehicle. Originally plaintiffs theorized a defective condition of the left front spring main leaf as being the cause for the sudden swerving to the left. Based on this premise plaintiffs, earlier in the litigation, requested discovery of all information that defendant possessed concerning similar accidents in vehicles manufactured by defendant with an identical spring. The requested discovery pertained not only to the 1970 K-10 Blazer (the model which is the subject of this litigation) but also to the 1969 and 1971 K-10 Blazer as well as the K-20 Blazer" }, { "docid": "17044959", "title": "", "text": "discovery is as follows : (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Defendant contends that “the subject matter involved in the pending action” is the performance of the fuel storage system and contiguous or nearby components on the 1966 Oldsmobile Toronado, as it performed in a rear end collision, and that the additional material now sought by the plaintiffs concerning post-1967 Toronado models is not relevant to the 1966 Toronado in question. In support of its argument, GM has supplied the affidavit of David L. Flesher, a GM automotive engineer. Mr. Flesh-er’s affidavit asserts that the fuel tank assembly of the 1968 Oldsmobile Toronado and parts contiguous thereto are substantially different from the fuel tank assembly and contiguous portions of the immediately preceding model, the 1967 Oldsmobile Toronado. He concludes that no competent automotive engineer could evaluate the fuel system crash-worthiness in either the 1966 or the 1967 Toronado by analyzing and testing the 1968 Toronado because of numerous specific changes made, which changes Mr. Flesher details in the affidavit. Plaintiffs, on the other hand, focus on that portion of Rule 26(b)(1) which in their view permits them to discover information concerning post-1967 Toronados “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Plaintiffs note that as of May 22, 1970, when the accident in question occurred, the 1968, 1969 and 1970 Toronados had already been designed and produced. Plaintiffs also submit (and defendant does not deny) that as of that date the 1971 models had completed the design and test phase and were ready for production and that models for future years were by then on the drawing boards. Plaintiffs argue, therefore, that: (1) the design detail of post-1967 Toronados on the drawing board prior to the production of the 1966 model might have shown" }, { "docid": "17044970", "title": "", "text": "Huyett found conclusively that the recall campaign involved vehicles that did not have the left front spring involved in the case before him. While the Frey and Uitts cases confine discovery to equipment that is “the same” or “identical,” we note that identity is a function not only of component parts, but also of engineering principles. We eschew a narrow construction of the notions of similarity and identity in this case, for under the cir cumstances here it would foreclose meaningful discovery. Rulings under the Federal Rules of Civil Procedure are discretionary with the court in light of the totality of the circumstances. See 4 Moore’s, Federal Practice § 26.56 [1] at p. 26-135 (2d ed. 1974). Cf. DiFrischia v. New York Cent. R.R. Co., 307 F.2d 473 (3d Cir. 1962) (“. . . the occurrence of similar accidents is admissible, in the sound discretion of the trial judge, for the purpose of establishing . , (2) their cause, (3) the imputation of notice to the owner of the place where they occurred, and (4) the likelihood of injury.”). We do not disagree with the conclusions reached in Frey and in the Uitts cases on their facts. However, in the case at bar, we find that information concerning post-1967 Toronado fuel supply systems and nearby parts may lead to admissible evidence concerning defects or unreasonably dangerous characteristics and the feasibility of correcting them and of knowledge (and consequent failure to warn) by GM of such conditions in the 1966 Toronado before plaintiffs’ accident in May 1970. One case which we have found is very nearly on point and another one cited by defendant supports out conclusion that in some cases information concerning different models may be reasonably calculated to lead to admissible evidence. In Lindberger v. General Motors Corporation, 56 F.R.D. 433 (W.D.Wis.1972), Judge Doyle permitted discovery of information concerning changes which were made in the design or malfunction warning system of the brakes on a GM front end loader subsequent to its manufacture. Judge Doyle found such discovery “relevant” and “not privileged” under Rule 26(b)(1); he noted that it" }, { "docid": "17044961", "title": "", "text": "that the fuel storage system and nearby parts of the 1966 Toronado were defectively designed and unreasonably dangerous; (2) such information might bear upon the state of the art and the feasibility of making changes to the 1966 car, either at the time of its manufacture or by way of recall, up to the time of the accident; and (3) the information which GM had before May 1970 concerning post-1967 Toronado models either already produced or in design may have given defendant knowledge of a design defect or an unreasonable danger of which defendant failed to warn the plaintiffs. We find plaintiffs’ argument to be sound. Yet the viability of those arguments is not merely a function of their internal logic. They must also survive the impact of the Flesher affidavit which embodies defendant’s contention that the sought-after discovery cannot lead to admissible evidence, since the post-1967 models are allegedly so different. However, we conclude from a careful reading of Mr. Flesher’s affidavit that it fails to undercut the plaintiffs’ contentions that it is important to the preparation of their case to discover changes within the Toronado family after the 1967 model was produced. Mr. Flesher notes numerous specific changes of a design nature in the fuel storage system and nearby parts of the post-1967 Toronado. However, he does not assert, as he presumably would have done had the facts supported it, a lack of similarity between the 1966 Toronados and those after 1967 in terms of: (1) the material used to manufacture the fuel system, its buffer walls and adjoining structures; or (2) the design relationship, including the distance between the fuel system, its buffer walls and adjoining structures; or (3) the engineering principles governing these components. Neither does Mr. Flesher’s affidavit challenge plaintiffs’ contention that there might have been changes in the design and manufacture of post-1967 Toronado models which warranted warning plaintiffs or recalling their 1966 models prior to the date of the accident in May 1970. Yet the foregoing matters are the touchstone of plaintiffs’ theory of the case. Since the plaintiffs’ discovery claims survive the" }, { "docid": "17044971", "title": "", "text": "the likelihood of injury.”). We do not disagree with the conclusions reached in Frey and in the Uitts cases on their facts. However, in the case at bar, we find that information concerning post-1967 Toronado fuel supply systems and nearby parts may lead to admissible evidence concerning defects or unreasonably dangerous characteristics and the feasibility of correcting them and of knowledge (and consequent failure to warn) by GM of such conditions in the 1966 Toronado before plaintiffs’ accident in May 1970. One case which we have found is very nearly on point and another one cited by defendant supports out conclusion that in some cases information concerning different models may be reasonably calculated to lead to admissible evidence. In Lindberger v. General Motors Corporation, 56 F.R.D. 433 (W.D.Wis.1972), Judge Doyle permitted discovery of information concerning changes which were made in the design or malfunction warning system of the brakes on a GM front end loader subsequent to its manufacture. Judge Doyle found such discovery “relevant” and “not privileged” under Rule 26(b)(1); he noted that it might lead to admissible evidence of feasibility or knowledge involved in plaintiff’s suit based on negligence, breach of warranties and/or products liability theories. And, in Hammill v. Hyster Company, 42 F.R.D. 173 (E.D.Wis. 1967), the court permitted plaintiff to discover tipping incidents regarding any model Hyster Karry Krane, even though they related to other than the model involved in the case at bar. In Hammill, discovery was confined to the tipping incidents on or before the date of the accident in that case. That is what we do here. . Some three years after the accident, Mrs. Bowman died of cancer. Whether or not the injuries sustained in the accident contributed in any way to her death is a matter of dispute between the remaining parties. . Pretrial memoranda are yet to be filed; however, plaintiffs’ theories have been advanced to the Court through counsel at a number of discovery conferences and hearings on motions. . Plaintiffs also ask defendant to detail by number and description all patents owned by or available to GM on" }, { "docid": "1080378", "title": "", "text": "OPINION AND ORDER JAMES E. DOYLE, District Judge. Plaintiff, Gordon C. Lindberger, a citizen of Wisconsin, filed a complaint against the defendants, General Motors Corporation and a division thereof, which are not citizens of Wisconsin. Plaintiff alleges that he suffered personal injuries proximately caused by the negligence of the defendants in manufacturing and designing a front end loader which was sold to the plaintiff’s employer. Plaintiff specifies that the front end loader was defective in two respects: first, that the front end loader did not contain an adequate system to warn its operator of impending brake failures; and second, that the loader was manufactured with only a single braking system so that any malfunction would result in the loader being without brakes altogether. The plaintiff further contends that the defendants are liable under a theory of strict liability in tort, because the brake system in the loader constitutes a defective condition making the machine unreasonably dangerous to any person using it. Finally, the plaintiff contends that the defendants, in selling the loader, breached their warranty that the machine was merchantable. Attorneys for the defendants have refused to answer interrogatories 23, 25 and 26, which were propounded by the plaintiffs pursuant to Rule 33, Fed.R. Civ.P. Plaintiffs have filed a motion to compel discovery. Interrogatory 23 requests the defendants to state whether any changes have been made, and if so to describe such changes, subsequent to the date when the loader in question was produced, in either the design of the braking system or in the warning system for brake malfunctions. Interrogatory 25 requests the defendants to state how any such changes affect the utility of the loader. Interrogatory 26 requests the names of persons responsible for such design changes. The defendants contend that the plaintiffs are not entitled to compel discovery because the subject matter of the disputed interrogatories is “privileged” and that consequently the standard of “relevancy” set out in Rule 26(b), Fed. R.Civ.P., is inapplicable. The defendants’ theory is that the evidence sought is “privileged” because of the rule of evidence which prohibits the admission of evidence at" }, { "docid": "17044974", "title": "", "text": "do so by analyzing and testing the 1968 Toronado.” To buttress his conclusions, Mr. Flesher details 27 “specific changes” in the 1968 Toronado. Most of these specific changes indicate that the 1968 Toronado had a fuel storage system and contiguous parts which were new and not generally interchangeable with the comparable parts for the 1967 model. For example, he notes that the fuel tank assembly was new and the filler neck opening was at a different angle to accommodate the revised body contours and new rear bumper shape. He also specifies changes in the following : fuel gauge; fuel tank straps; exhaust system; rear bumber and rear panel design; and in the position of the rear lights and license plate lights. None of these specific changes, however, support Mr. Flesher’s broader conclusions. Nor do they indicate that the information which plaintiffs seek concerning the post-1967 Toronado is not reasonably calculated to lead to admissible evidence. As discussed in the text above, we believe that Mr. Flesher’s affidavit does not rule out the discoverability of information concerning: (1) possible design defects in the 1966 Toronado; (2) the feasibility of correcting them; and/or (3) the failure to warn plaintiffs before the accident about such defects or unreasonable dangers. In short, Mr. Flesher’s affidavit does not directly address or refute plaintiffs’ pivotal theories of this case. . We reject plaintiffs’ request for matters which became known or available thereafter. . The documents which must be produced shall include: blueprints, drawings, diagrams, overlays and supporting data; correspondence originating or received by General Motors; inter-office memoranda; manuals, instruction books, and folios; test results and memoralization of meetings relating thereto ; production reports ' and complaints relating thereto; governmental reports; trade organization reports; and all still photographs, motion pictures, slides and projections relating to the fuel supply system and nearby parts. In objecting to plaintiffs’ interrogatories and request for production of documents, defendant had claimed that complying with such discovery would create an undue burden. Defendant has not pressed this argument in its brief opposing plaintiffs’ motion to compel discovery. However, we are not unmindful of" }, { "docid": "17044967", "title": "", "text": "at a trial. As we noted earlier, the ruling herein permitting discovery in no way requires us to permit the plaintiffs to use the information found in the course of this discovery as evidence at trial; we need only find that the information sought is reasonably calculated to lead to admissible evidence within the meaning of Rule 26(b)(1). Moreover, the general rule invoked by defendant has been limited by a variety of exceptions. Evidence of subsequent design modifications and indeed even post-accident precautions are admissible: (1) to refute the position that the existing condition was incapable of improvement, or to demonstrate that precautions were feasible before the injury; or (2) to show that a defendant knew or should have known of a reasonably foreseeable danger yet failed to give notice thereof. See, e. g., Tyler v. Dowell, Inc., 274 F.2d 890 (10th Cir. 1960) (evidence that defendant changed oil well drilling equipment and design of nipple on its frack head after fire, held admissible in rebuttal to show feasibility of using larger nipple at check valve); Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961) (evidence of subsequent design modification in plane’s alternator shaft admitted to show that such design changes and safeguards were feasible). See also 2 Wigmore, Evidence § 283 at Supp. 64 (3d ed. 1972 Supp.); Annot.; 64 A.L.R.2d 1296 (1959 and later case service); Proposed Federal Rules of Evidence § 407, 56 F.R.D. 183, 225-226 (1972) (and Advisory Committee’s Notes thereto), suspended 86 Stat. 9 (1973) (but § 407 is unchanged in the House version, H.R. 5463, 93rd Cong., 1st Sess. (1973) ). Three of the cases cited by defendant also make the point that information concerning equipment different from that involved in the law suit is neither discoverable nor admissible as evidence, quite aside from whether the information was compiled before or after the injury. See Frey v. Chrysler Corporation, 41 F.R.D. 174 (W.D.Pa.1966); Uitts v. General Motors Corporation, 58 F.R.D. 450 (E.D.Pa.1972) (hereinafter Uitts I); Uitts v. General Motors Corporation, 62 F.R.D. 560 (E.D.Pa.1974) (hereinafter Uitts II). In Frey, plaintiff requested information" }, { "docid": "17044973", "title": "", "text": "all types of gas tanks (interrogatory 55), and for defendant to give its position on whether there was and is anything in the design of the 1966 Toronado gas tank which made it more susceptible to the spillage or freeing of gas or vapors in the presence of fire than any other passenger vehicles then for sale (interrogatory 57). We find these two interrogatories overly broad, and therefore we will deny plaintiffs’ motion to compel discovery as to these two interrogatories as drafted. In addition, we note that interrogatory 57 seeks a conclusion from defendant and is more in the nature of a Request for an Admission than an interrogatory. . In his affidavit, Mr. Flesher concludes that: (1) “the fuel tank assembly of the 1968 Oldsmobile Toronado and parts contiguous thereto are substantially different from the fuel tank assembly and contiguous portions of the immediately preceeding model, the 1967 Oldsmobile Toronadoand (2) “no responsible, competent automotive engineer, given the task of evaluating fuel system crashworthiness .in either the 1966 or the 1967 Toronado, could do so by analyzing and testing the 1968 Toronado.” To buttress his conclusions, Mr. Flesher details 27 “specific changes” in the 1968 Toronado. Most of these specific changes indicate that the 1968 Toronado had a fuel storage system and contiguous parts which were new and not generally interchangeable with the comparable parts for the 1967 model. For example, he notes that the fuel tank assembly was new and the filler neck opening was at a different angle to accommodate the revised body contours and new rear bumper shape. He also specifies changes in the following : fuel gauge; fuel tank straps; exhaust system; rear bumber and rear panel design; and in the position of the rear lights and license plate lights. None of these specific changes, however, support Mr. Flesher’s broader conclusions. Nor do they indicate that the information which plaintiffs seek concerning the post-1967 Toronado is not reasonably calculated to lead to admissible evidence. As discussed in the text above, we believe that Mr. Flesher’s affidavit does not rule out the discoverability of information" }, { "docid": "17044963", "title": "", "text": "Flesher affidavit, we hold that plaintiffs may discover, within the framework of the interrogatories and production requests described at page, 65, supra, matters related to the design detail and testing of post-1967 Toronado fuel storage systems and nearby parts, limited, however, to matters known by or available to the defendant up to the time of the accident on May 22, 1970. We permit such discovery because this information may lead to admissible evidence: (1) that the 1966 Toronado fuel storage system and nearby parts was defectively designed; (2) that it was feasible to design them in a way that was not unreasonably dangerous; or (3) that the defendant had knowledge prior to the accident that the fuel storage system and nearby parts in the 1966 Toronado model was unreasonably dangerous, yet defendant failed to warn plaintiffs, by recall or otherwise, of such danger. To exclude such discovery would be to permit the defendant alone to determine whether such information is relevant. The discovery rules in general and the definition of relevance under this rule in particular have been given a broad and liberal reading. See 4 Moore’s Federal Practice § 26.56 [1] (2d ed. 1974). Furthermore, in supervising discovery, the district judge exercises broad discretion. Id. We underscore however that our ruling on the instant motion is no indication of whether any of the information discovered will later prove admissible as evidence in a trial. See Notes of Advisory Committee to F.R.Civ.P. 26(b)(1). In particular, we emphasize that the mere fact that plaintiffs may find information showing .that GM manufactured a different fuel storage system in its post-1967 Toronados which proved to be safer is not necessarily admissible to prove the inference that the 1966 Toronado was either defectively designed or unreasonably dangerous, or that GM failed to warn of a known danger. Matters of automotive design are sophisticated and complex and there may be a plethora of explanations for changes in subsequent models. The cases cited by defendant are either inapposite or distinguishable. Most of defendant’s cases deal with information that developed subsequent to the accident in dispute. See," }, { "docid": "17044958", "title": "", "text": "and 42). With regard to their claim of uncrashworthiness, plaintiffs seek information concerning whether the Toronado models in 1968 through 1971 were capable of being struck in the rear at 30 m. p. h. with the tank at least 90% full without losing more than one ounce during impact, pursuant to S.A.E. recommended practice J850 (interrogatories 49, 50, 51, 52 and 53). Plaintiffs seek to discover what experience and claims, whether in litigation or otherwise, defendant has had with fires, damage, explosion, or spillage of gasoline from the gas tank or gas lines in the Toronados from 1966 to the present (interrogatories 58 and 59). Finally, plaintiffs seek production of those materials not yet supplied by defendant in light of defendant’s objections to the discovery concerning post-1967 Toronado models. III. Discussion Does F.R.Civ.P. 26(b)(1) Permit Discovery of Any Material Dealing with Post-1967 Toronado Models ? Federal Rule of Civil Procedure 26(b) (1) provides in pertinent part: (b) Scope of Discovery. Unless otherwise limited by order of court in accordance with these rules, the scope of discovery is as follows : (1) In General. Parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action. It is not ground for objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Defendant contends that “the subject matter involved in the pending action” is the performance of the fuel storage system and contiguous or nearby components on the 1966 Oldsmobile Toronado, as it performed in a rear end collision, and that the additional material now sought by the plaintiffs concerning post-1967 Toronado models is not relevant to the 1966 Toronado in question. In support of its argument, GM has supplied the affidavit of David L. Flesher, a GM automotive engineer. Mr. Flesh-er’s affidavit asserts that the fuel tank assembly of the 1968 Oldsmobile Toronado and parts contiguous thereto are substantially different from the fuel tank assembly and contiguous portions of the immediately preceding model, the 1967 Oldsmobile" }, { "docid": "17044972", "title": "", "text": "might lead to admissible evidence of feasibility or knowledge involved in plaintiff’s suit based on negligence, breach of warranties and/or products liability theories. And, in Hammill v. Hyster Company, 42 F.R.D. 173 (E.D.Wis. 1967), the court permitted plaintiff to discover tipping incidents regarding any model Hyster Karry Krane, even though they related to other than the model involved in the case at bar. In Hammill, discovery was confined to the tipping incidents on or before the date of the accident in that case. That is what we do here. . Some three years after the accident, Mrs. Bowman died of cancer. Whether or not the injuries sustained in the accident contributed in any way to her death is a matter of dispute between the remaining parties. . Pretrial memoranda are yet to be filed; however, plaintiffs’ theories have been advanced to the Court through counsel at a number of discovery conferences and hearings on motions. . Plaintiffs also ask defendant to detail by number and description all patents owned by or available to GM on all types of gas tanks (interrogatory 55), and for defendant to give its position on whether there was and is anything in the design of the 1966 Toronado gas tank which made it more susceptible to the spillage or freeing of gas or vapors in the presence of fire than any other passenger vehicles then for sale (interrogatory 57). We find these two interrogatories overly broad, and therefore we will deny plaintiffs’ motion to compel discovery as to these two interrogatories as drafted. In addition, we note that interrogatory 57 seeks a conclusion from defendant and is more in the nature of a Request for an Admission than an interrogatory. . In his affidavit, Mr. Flesher concludes that: (1) “the fuel tank assembly of the 1968 Oldsmobile Toronado and parts contiguous thereto are substantially different from the fuel tank assembly and contiguous portions of the immediately preceeding model, the 1967 Oldsmobile Toronadoand (2) “no responsible, competent automotive engineer, given the task of evaluating fuel system crashworthiness .in either the 1966 or the 1967 Toronado, could" }, { "docid": "15340006", "title": "", "text": "factors plaintiffs contend are significant and relevant to the subject matter of this case under Rule 26(b)(1), Fed.R.Civ.P. The defendant objects to the interrogatories on the ground that they are irrelevant because they relate to engine mounts which are of an earlier and different model than the ones on plaintiffs’ vehicle. The defendant’s argument appears to be, in effect, that unless the motor mounts concerning which the plaintiffs seek discovery are identical to those involved in this suit they are not subject to discovery under the above rule. Defendant cites in support of this position the case of Uitts v. General Motors Corp., 62 F.R.D. 560 (E.D.Pa.1974), which in turn relied on Prashker v. Beach Aircraft Corp., 258 F.2d 602 (3 Cir. 1958). We believe that Uitts and Prashker are to be distinguished from the case at bar. In Uitts the defendant presented evidence which plaintiff did not controvert from which the court could, and did, make a determination that the object as to which discovery was sought was so dissimilar to the subject matter before the court that the desired discovery was not relevant to the subject matter of the pending action and was not reasonably calculated to lead to the discovery of admissible evidence. In Prashker, where plaintiffs sought to recover damages as a result of the crash of an airplane manufactured by defendant, the Third Circuit upheld the District Court’s refusal to admit at trial accident reports involving four earlier models of the aircraft in question in that case. In doing so, the Circuit held that the exclusion was justified since the evidence “permitted the trial court to regard the first and fifth [the plane in suit] planes as dissimilar aircraft. Evidence of accidents in the first model would not have been sufficiently material to the cause of accidents in the fifth model to require its admission.” (emphasis supplied). Prashker p. 608. Rule 26(b)(1), Fed.R.Civ.P. provides in part that “parties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action . . . . It is not" }, { "docid": "17044960", "title": "", "text": "Toronado. He concludes that no competent automotive engineer could evaluate the fuel system crash-worthiness in either the 1966 or the 1967 Toronado by analyzing and testing the 1968 Toronado because of numerous specific changes made, which changes Mr. Flesher details in the affidavit. Plaintiffs, on the other hand, focus on that portion of Rule 26(b)(1) which in their view permits them to discover information concerning post-1967 Toronados “if the information sought appears reasonably calculated to lead to the discovery of admissible evidence.” Plaintiffs note that as of May 22, 1970, when the accident in question occurred, the 1968, 1969 and 1970 Toronados had already been designed and produced. Plaintiffs also submit (and defendant does not deny) that as of that date the 1971 models had completed the design and test phase and were ready for production and that models for future years were by then on the drawing boards. Plaintiffs argue, therefore, that: (1) the design detail of post-1967 Toronados on the drawing board prior to the production of the 1966 model might have shown that the fuel storage system and nearby parts of the 1966 Toronado were defectively designed and unreasonably dangerous; (2) such information might bear upon the state of the art and the feasibility of making changes to the 1966 car, either at the time of its manufacture or by way of recall, up to the time of the accident; and (3) the information which GM had before May 1970 concerning post-1967 Toronado models either already produced or in design may have given defendant knowledge of a design defect or an unreasonable danger of which defendant failed to warn the plaintiffs. We find plaintiffs’ argument to be sound. Yet the viability of those arguments is not merely a function of their internal logic. They must also survive the impact of the Flesher affidavit which embodies defendant’s contention that the sought-after discovery cannot lead to admissible evidence, since the post-1967 models are allegedly so different. However, we conclude from a careful reading of Mr. Flesher’s affidavit that it fails to undercut the plaintiffs’ contentions that it is important" }, { "docid": "17044975", "title": "", "text": "concerning: (1) possible design defects in the 1966 Toronado; (2) the feasibility of correcting them; and/or (3) the failure to warn plaintiffs before the accident about such defects or unreasonable dangers. In short, Mr. Flesher’s affidavit does not directly address or refute plaintiffs’ pivotal theories of this case. . We reject plaintiffs’ request for matters which became known or available thereafter. . The documents which must be produced shall include: blueprints, drawings, diagrams, overlays and supporting data; correspondence originating or received by General Motors; inter-office memoranda; manuals, instruction books, and folios; test results and memoralization of meetings relating thereto ; production reports ' and complaints relating thereto; governmental reports; trade organization reports; and all still photographs, motion pictures, slides and projections relating to the fuel supply system and nearby parts. In objecting to plaintiffs’ interrogatories and request for production of documents, defendant had claimed that complying with such discovery would create an undue burden. Defendant has not pressed this argument in its brief opposing plaintiffs’ motion to compel discovery. However, we are not unmindful of defendant’s concern about the difficulty of finding the information for answering these interrogatories in view of their voluminous nature and their age. While we have discretion under Rule 26(c) of the Federal Rules of Civil Procedure to protect the party from answering interrogatories or producing documents if it would prove unduly burdensome, we do not believe that the discovery which we are approving in the instant case creates such a problem. For one thing, defendant has already demonstrated that it can gather such information concerning the fuel supply system and nearby parts by model and year, since it has already done so in supplying such information to plaintiffs concerning the 1966 and 1967 Toronado models. In addition, we believe that a large imrt of the burden created by the production of this information will have to be borne by the plaintiffs. Plaintiffs’ counsel will have to sift through voluminous documents and other material in order to find either admissible evidence or items which may lead to further discovery and eventually to admissible evidence. Defendant’s burden" }, { "docid": "19056639", "title": "", "text": "Plaintiffs claim that the information which they seek concerning the similar prior and subsequent accidents is relevant to their claim and discoverable under Fed.R.Civ.P. 26. Defendant, however, contends that plaintiffs may have discovery only of accidents prior to the incident in this case and only of those which involved 1970 K-10 Suburban models. It is well established in Pennsylvania that “. . . evidence of the occurrence of similar accidents is admissible, in the sound discretion of the trial judge, for the purpose of establishing . . . ., (2) their cause, (3) the imputation of notice to the owner of the place where they occurred, and (4) the likelihood of injury.” DiFrischia v. New York Cent. R. R. Co., 307 F.2d 473, 476 (3 Cir. 1962). In the instant case plaintiffs are concerned with showing both cause and notice from the occurrence of the other accidents. The information concerning accidents prior to that involved in this action is clearly relevant. Courts have ordered parties to make available in discovery reports within their control of accidents in similar circumstances. See Sturdevant v. Erie-Lackawanna R. R. Co., 50 F.R.D. 3 (W.D.Pa.1970); Hammill v. Hyster Co., 42 F.R.D. 173 (E.D.Wis.1967). Defendant urges that plaintiffs may not have discovery of reports of accidents subsequent to the instant accident. If similar accidents with identical equipment are relevant to the determination of causation, subsequent accidents would appear to be as relevant as prior accidents. While only earlier accidents can be relevant to the issue of notice, causation is an issue affected only by the circumstances and the equipment, and is not related to the date of the occurrence. In Yoffee v. Pa. Power & Light Co., 385 Pa. 520, 123 A.2d 636 (1956) the court permitted the introduction of evidence of a subsequent accident to demonstrate that the installation was one likely to cause injury. The subsequent accidents may be relevant to the present action and, therefore, plaintiffs have a right to discovery. Defendant also claims that plaintiffs’ discovery should be limited to the model truck involved in the accident, a 1970 K-10 Suburban, and" }, { "docid": "17044962", "title": "", "text": "to the preparation of their case to discover changes within the Toronado family after the 1967 model was produced. Mr. Flesher notes numerous specific changes of a design nature in the fuel storage system and nearby parts of the post-1967 Toronado. However, he does not assert, as he presumably would have done had the facts supported it, a lack of similarity between the 1966 Toronados and those after 1967 in terms of: (1) the material used to manufacture the fuel system, its buffer walls and adjoining structures; or (2) the design relationship, including the distance between the fuel system, its buffer walls and adjoining structures; or (3) the engineering principles governing these components. Neither does Mr. Flesher’s affidavit challenge plaintiffs’ contention that there might have been changes in the design and manufacture of post-1967 Toronado models which warranted warning plaintiffs or recalling their 1966 models prior to the date of the accident in May 1970. Yet the foregoing matters are the touchstone of plaintiffs’ theory of the case. Since the plaintiffs’ discovery claims survive the Flesher affidavit, we hold that plaintiffs may discover, within the framework of the interrogatories and production requests described at page, 65, supra, matters related to the design detail and testing of post-1967 Toronado fuel storage systems and nearby parts, limited, however, to matters known by or available to the defendant up to the time of the accident on May 22, 1970. We permit such discovery because this information may lead to admissible evidence: (1) that the 1966 Toronado fuel storage system and nearby parts was defectively designed; (2) that it was feasible to design them in a way that was not unreasonably dangerous; or (3) that the defendant had knowledge prior to the accident that the fuel storage system and nearby parts in the 1966 Toronado model was unreasonably dangerous, yet defendant failed to warn plaintiffs, by recall or otherwise, of such danger. To exclude such discovery would be to permit the defendant alone to determine whether such information is relevant. The discovery rules in general and the definition of relevance under this rule in" }, { "docid": "17044968", "title": "", "text": "valve); Boeing Airplane Co. v. Brown, 291 F.2d 310 (9th Cir. 1961) (evidence of subsequent design modification in plane’s alternator shaft admitted to show that such design changes and safeguards were feasible). See also 2 Wigmore, Evidence § 283 at Supp. 64 (3d ed. 1972 Supp.); Annot.; 64 A.L.R.2d 1296 (1959 and later case service); Proposed Federal Rules of Evidence § 407, 56 F.R.D. 183, 225-226 (1972) (and Advisory Committee’s Notes thereto), suspended 86 Stat. 9 (1973) (but § 407 is unchanged in the House version, H.R. 5463, 93rd Cong., 1st Sess. (1973) ). Three of the cases cited by defendant also make the point that information concerning equipment different from that involved in the law suit is neither discoverable nor admissible as evidence, quite aside from whether the information was compiled before or after the injury. See Frey v. Chrysler Corporation, 41 F.R.D. 174 (W.D.Pa.1966); Uitts v. General Motors Corporation, 58 F.R.D. 450 (E.D.Pa.1972) (hereinafter Uitts I); Uitts v. General Motors Corporation, 62 F.R.D. 560 (E.D.Pa.1974) (hereinafter Uitts II). In Frey, plaintiff requested information concerning the use by the defendant of an accelerator linkage assembly of the same “type” as that installed in the plaintiff’s vehicle. While the court found the wording of the plaintiff’s interrogatory too vague to aid in the pinpointing of issues in the action before it, it noted that “where the party asks a question as to a particular or specified linkage assembly, the interrogatory is proper.” Accordingly, the court limited plaintiff’s interrogatories to finding information concerning “the same throttle linkage assembly” and required defendant to answer such interrogatories. In Uitts I, our colleague Judge Huyett permitted discovery concerning accidents subsequent to the accident in dispute to the extent that such subsequent accidents involved identical equipment (i. e., a left front spring main leaf in GM vehicles) and was relevant to the determination of causation. In Uitts II, Judge Huyett refused to permit discovery concerning a recall campaign because the campaign did not involve the same model vehicle as the one in question. However, Uitts II is distinguishable from the present case in that Judge" }, { "docid": "17044964", "title": "", "text": "particular have been given a broad and liberal reading. See 4 Moore’s Federal Practice § 26.56 [1] (2d ed. 1974). Furthermore, in supervising discovery, the district judge exercises broad discretion. Id. We underscore however that our ruling on the instant motion is no indication of whether any of the information discovered will later prove admissible as evidence in a trial. See Notes of Advisory Committee to F.R.Civ.P. 26(b)(1). In particular, we emphasize that the mere fact that plaintiffs may find information showing .that GM manufactured a different fuel storage system in its post-1967 Toronados which proved to be safer is not necessarily admissible to prove the inference that the 1966 Toronado was either defectively designed or unreasonably dangerous, or that GM failed to warn of a known danger. Matters of automotive design are sophisticated and complex and there may be a plethora of explanations for changes in subsequent models. The cases cited by defendant are either inapposite or distinguishable. Most of defendant’s cases deal with information that developed subsequent to the accident in dispute. See, e. g., Needles v. F. W. Woolworth Co., 13 F.R.D. 460 (E.D.Pa.1952) (remedial non-skid modifications and precautions taken after fall were not discoverable); Hammill v. Hyster Co., 42 F.R.D. 173 (E.D.Wis. 1967) (changes on similar machines made after accident are not discoverable) ; Reddick v. White, 295 F.Supp. 243 (S.D.Ga.1969) (instruction manual changes made after injury are not discoverable) ; Richards v. Maine Central Railroad, 21 F.R.D. 590 (D.Me. 1957) (post-accident employment record of defendant’s engineer irrelevant); but cf. M. S. A. Construction Co. v. Crafts, Inc., 58 F.R.D. 215 (E.D.Wis. 1973) (plaintiff could not discover brochures or documents emplaining reasons for changes made after the 1970 date of manufacture and delivery of the roofing material in question even though alleged injury from leaky roof occurred after 1970; nor could plaintiff discover reports on failure of same type of roofing in other cases); Handlos v. Litton Industries, Inc., 51 F.R.D. 23 (E.D.Wis. 1970) (alterations made to ammunition hoists not discoverable since interrogatories ask about changes made before date of alleged injury rather than before the" }, { "docid": "17044953", "title": "", "text": "OPINION AND ORDER EDWARD R. BECKER, District Judge. I. Preliminary Statement This is a products liability case in which plaintiffs contend that the 1966 Oldsmobile Toronado motor vehicle in which they were riding at the time of an accident on February 21, 1970, was defectively designed and insufficiently crashworthy. Before us is a discovery motion which presents a question oft recurring in automobile design product liability cases; i. e., the extent to which the plaintiffs may discover detailed factual information about the design and testing of models later than the one allegedly responsible for plaintiffs’ injuries. Under F.R.Civ.P. 26(b)(1), we consider not whether the matters sought to be discovered will be admissible at trial, but whether they are reasonably calculated to lead to the discovery of admissible evidence. The present motion seeks to compel defendant, General Motors Corporation (GM), to answer a number of specific interrogatories and to produce specified documents about the fuel storage system and nearby components in Toronado models from 1968 to the present. GM vigorously resists the proposed discovery, asserting that it is beyond the scope of discovery permitted by F.R.Civ.P. 26(b)(1). To understand these issues and our resolution of them, we must first set forth the history of this ease and the factual allegations and legal theories advanced by the parties. II. The Factual Background and Plaintiffs’ Theories of the Case On May 22, 1970, the plaintiffs were injured when their vehicle, a 1966 Oldsmobile Toronado, was struck in the rear by a vehicle operated by the third-party defendant, Clyde E. Rhodes. The gasoline tank of plaintiffs’ car exploded and caused the car to be consumed by fire. Before she could be extricated, Mrs. Bowman sustained severe burns over much of her body and Mr. Bowman was also injured. On August 17, 1971, plaintiffs filed a complaint against GM demanding $2.5 million dollars in damages, and alleging breach of warranties, negligence, and liability under 402(A) of the Restatement of Torts. Since the filing of the complaint, substantial discovery has been conducted. On the basis of that discovery and their independent investigation, plaintiffs assert that the" } ]

[ { "docid": "21984640", "title": "", "text": "costs, including transportation costs related to the return of the children. 42 U.S.C. § 11607(b)(3). The mandate shall issue forthwith. AFFIRMED. . According to Dane, at the end of the three-year period, the contract entitled him to remove his money without penalty and also allowed him to take out a loan for home renovations. According to Antonia, use of the account funds was restricted to the purchase or renovation of a home in Germany. . Although the order was entered ex parte, Antonia told Dane that she was seeking this judicial determination, and Dane was thus aware of the proceedings. . Professor Elisa Perez-Vera was the official Hague Conference reporter. \"Her explanatory report is recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10494, 10503 (1986). Many of our sister circuits treat the Perez-Vera Report as an authoritative source for interpreting the Convention’s provisions. See, e.g., Gitter, 396 F.3d at 129 n. 4; Mozes, 239 F.3d at 1069 n. 3. The full text of the Perez-Vera Report is available on the Internet at www.hilton-house.com/articles/Perez_rpt.txt. . These comments apply to wrongful retentions as well as wrongful removals. Because we are addressing here a wrongful removal, for ease of understanding, we will focus our remarks on removal cases. . There are certain defenses, not at issue here, that might result in a district court declining to return a child to its habitual residence. For example, if a child faces a \"grave risk of harm” in the place where it habitually resides, the court may decline to return the child to that place. 42 U.S.C. § 11603(e)(2)(A). . In the United States, domicile is a person’s legal home, the “permanent residence of a person or the place to which he [or she] intends to return even though he [or she] may actually reside elsewhere.” Black's Law Dictionary 484 (6th Ed. 1990). . At the" } ]

[ { "docid": "11886703", "title": "", "text": "Elisa Pérez-Vera, Explanatory Report: Hague Convention on Private International Law ¶ 77 (1981), https://assets.hcch.neV upload/expl28.pdf. Because M. turned 16 during the pen-dency of these proceedings, the Hague Convention no longer applies to him. The court dismisses as moot the appeal as to M. We address Custodio’s remaining arguments solely as they apply to G. II. Mature Child Defense “The principal objectives of the Convention are ‘to secure the prompt return of children wrongfully -removed to or retained in any Contracting State’ and ‘to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.’ ” Barzilay v. Barzilay (Barzilay I), 536 F.3d 844, 846 (8th Cir. 2008) (quoting Hague Convention art. 1). To establish a prima facie case for return of the child under the Convention, the petitioner must show, by a preponderance of the evidence, that: (1) immediately prior to removal or retention, the child habitually resided in another Contracting State; (2) the removal or retention was in breach of the petitioner’s custody rights under that State’s law; and (3) the petitioner was exercising those custody rights at the time of the removal or wrongful retention. Hague Convention art. 3; Barzilay I, 536 F.3d at 847; see 22 U.S.C. § 9003(e)(1)(A) (burden of proof); West v. Dobrev, 735 F.3d 921, 929 (10th Cir. 2013). If a- petitioner establishes a prima facie case, the child must be “promptly returned unless one of the narrow exceptions set forth in the Convention applies.” 22 U.S.C. § 9001(a)(4). The district court assumed without deciding that Custodio established a prima facie case for return. Because we find that an affirmative defense applies, we also do not address whether Custodio met his initial burden. The Hague Convention establishes several affirmative defenses that must be proved by the respondent. See Hague Convention arts. 12, 13, 20. Here, Torres raised the mature child defense under Article 13 of the Convention. In order to carry her burden on this defense, Torres must establish by a preponderance of the evidence (1) that the child has “attained an" }, { "docid": "23543785", "title": "", "text": "he refused her offer to return to Greece with her to bring the children to New York pending the divorce proceeding. Having found these circumstances, the Greek Hague petition courts made an entirely supportable determination that Diorinou had not wrongfully retained the children in Greece. Consideration of custody adjudications. Our deference to the Greek Hague petition rulings that Diorinou did not wrongfully retain the children in Greece in 1995 does not necessarily end our consideration of whether Mezitis’s removal of the children in 2000 requires an order for their return. The Convention contemplates that any wrongful removal (or retention) will be remedied by an order for return so that the issue of custody can be properly determined by a court of competent jurisdiction. See Elisa Pérez Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session ¶ 19 (1980) {“Pérez Vera Report ”), available at <http://www.hcch.net/e/conventions/menu28e.html>. As the Pérez Vera Report states, “the Convention rests implicitly upon the principle that any debate on the merits of the question, i.e., of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal.” Id. In the pending matter, a New York court has awarded custody to Mezitis, and a Greek court thereafter awarded custody to Diorinou. Considering first the New York custody award, we note that Article 17 of the Convention provides: The sole fact that a decision relating to custody has been given in or is entitled to recognition in the requested State shall not be a ground for refusing to return a child under this Convention, but the judicial or administrative authorities of the requested State may take account of the reasons for that decision in applying this Convention. In the pending ICARA action, Judge Stanton faithfully heeded Article 17, neither denying an order for return simply because of the New York custody award nor failing to “take account of’ that award. He noted that the New York custody award had resulted from “a one-sided and defective presentation.” Diorinou, 2000" }, { "docid": "18949327", "title": "", "text": "the Convention. 42 U. S. C. § 11601(b)(3)(B). There is no present uniformity sufficiently substantial to justify departing from our independent judgment on the Convention’s text and purpose and the drafters' intent. V At bottom, the Convention aims to protect the best interests of the child. Pérez-Vera Report ¶ 25, at 432. Recognizing that not all removals in violation of the laws of the country of habitual residence are contrary to a child’s best interests, the Convention provides a powerful but limited return remedy. The judgment of the Convention’s drafters was that breaches of access rights, while significant (and thus expressly protected by Article 21), are secondary to protecting the child’s interest in maintaining an existing custodial relationship. Today, the Court has upended the considered judgment of the Convention’s drafters in favor of protecting the rights of noncustodial parents. In my view, the bright-line rule the Court adopts today is particularly unwise in the context of a treaty intended to govern disputes affecting the welfare of children. I, therefore, respectfully dissent. As the Court recognizes, see ante, at 19, the Executive Branch considers the Pérez-Vera Report “the official history” for the Convention and “a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. 10503 (1986) (hereinafter Convention Analysis). Indisputably, Ms. Abbott’s removal of A. J. A. from Chile was wrongful in the generic sense of the word. She violated Chilean law when she took A. J. A. to Texas because she sought neither Mr. Abbott’s permission nor the court’s authorization before doing so. She violated both the existing “ne exeat” order imposed by judicial decree in the couple’s custody dispute, see ante, at 6, as well as Chilean statutory law defining the access rights of noncustodial parents, see Minors Law 16,618, Art. 49, App. to Pet. for Cert. 61a. The removal was illegal, then, but it was only wrongful within the meaning of the Convention if it was in breach of Mr. Abbott’s rights of custody. Unfortunately," }, { "docid": "23647049", "title": "", "text": "other than its place of habitual residence and is not returned by the person with whom [he] was staying.” Id. ¶ 57 (emphasis added). In other words, the. Hague Convention was meant to cover the situation where a child has been kept by another person away from the petitioner claiming rights under the Convention, not where the petitioner still retains the child but is prevented from removing him from the jurisdiction. Although the preamble to the Hague Convention does state that one of its purposes is the return of the child to its state of habitual residence, see Hague Convention preamble, T.I.A.S. No. 11,670, at 4, 1343 U.N.T.S. 89, at 98, the substantive provisions of the treaty are silent on where the child is to be returned. This silence, according to the Pérez-Vera Report, was intentional and must be “understood as allowing the authorities of the State of refuge to return the child directly to the applicant, regardless of the latter’s present place of residence.” Pérez-Vera, supra, ¶ 110. In cases such as this one, where the child remains in the physical care of the petitioner, it is impossible “to return the child directly to the applicant.” Id. That is so because there has been no “retention” within the meaning of the Convention. There having been no retention, there can have been no “wrongful retention.” IV. Because the state court’s ne exeat order does not constitute a “retention” within the meaning of the Hague Convention, we conclude that the district court did not err in granting McConnell’s motion to dismiss. AFFIRMED. EDMONDSON, Chief Judge, CONCURS in the result. . The complaint does not specify the results of the DNA test, but elsewhere it alleges that Pielage was \"pregnant with Mr. McConnell's child.” In addition, McConnell filed an amended petition in state court alleging that he is the father. So, both parties agree that McConnell is the father. . At oral argument, the parties informed us that a final custody hearing had been scheduled for September 20, 2007, but it was continued to December 3, 2007. They have since informed us" }, { "docid": "22983606", "title": "", "text": "expansive conception of custody rights. The report containing the official history and commentary on the Convention clarifies that “the intention [of the Convention] is to protect all the ways in which custody of children can be exercised.” Elisa Pér-ez-Vera, Explanatory Report to the Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (Child Abduction) 426, para. 71 (1980) (emphasis in original) (“Pérez-Vera Report”). This broad notion of custody rights is also consistent with Article 3, which provides that “rights of custody” may arise from a variety of sources, including by “operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of [the child’s country of habitual residence].” Hague Convention, art. 3, 51 Fed. Reg. at 10,498. In this way, the Convention plainly favors “a flexible interpretation of the terms used, which allows the greatest possible number of cases to be brought into consideration.” Pérez-Vera Report, para. 67. Consequently, in determining whether the rights arising under a ne exeat clause constitute “rights of custody” under the Convention, I discern an intent of inclusion rather than exclusion, so as to effectuate the drafters’ goal of making the treaty applicable to all possible cases of wrongful removal. Although the treaty does not generally define its legal terms, see Pérez-Vera Report, para. 83, the risk that “an incorrect interpretation of [custody and access rights] would ... compromis[e] the Convention’s objects” led the drafters to include Article 5, which offers further guidance on the meaning of the term “rights of custody.” See Pérez-Vera Report, para. 83. I note, however, that the provision was left deliberately vague due to the drafters’ failure to agree on a more precise definition. See Pérez-Vera Report, para. 84 (“[S]ince all efforts to define custody rights in regard to [particular situations] failed, one has to rest content with the general description given [in the text].”). Article 5 provides that: For the purposes of this Convention— (a) “rights of custody” shall include rights relating to the care of the person of the" }, { "docid": "22586397", "title": "", "text": "1; see also In re Prevot, 59 F.3d 556, 558 (6th Cir.1995). One of the paramount purposes of the Hague Convention is to “restore the status quo and deter parents from crossing international borders in search of a more sympathetic court.” See Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 376 (8th Cir.1995). Against this backdrop, Article 3 of the Hague Convention spells out the parameters for determining whether a child has been wrongfully removed or retained. Removal or retention of a child is wrongful where: a. it is in breach of rights of custody attributed to a person ... under the law of the State in which the child was habitually resident immediately before the removal or retention; and b. at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been, so exercised but for the removal or retention. Hague Convention, art. 3, T.I.A.S. No. 11,-670 at 4. Because the language of the Convention is somewhat conclusory, United States courts look to two sources of official commentary for guidance: (1) the Explanatory Report by Elisa Perez-Vera, the official Hague Conference reporter (the “Perez-Vera Report”), and (2) the Legal Analysis of the Hague Convention on the Civil Aspects of International Child Abduction (“Legal Analysis”) found in the Federal Register. 51 Fed.Reg. 10503 (1986). As the Legal Analysis notes: [The Perez-Verez] explanatory report is recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it. Id. We underscore that the Hague Convention analysis is not a determination of custody rights. Under Article 19 of the Hague Convention and 42 U.S.C. § 11601(b)(4), “a United States district court has authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim.” See, e.g., Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993) (“Friedrich I ”) (citing 42 U.S.C. § 11601(b)(4)) (emphasis added). The court is to determine only whether the removal or retention of" }, { "docid": "11188884", "title": "", "text": "Derek does not challenge Mary’s removal of JMR from Ireland in November 2007. Assuming that Ireland was the child’s habitual residence at that time, Mary’s conduct was not wrongful under the Hague Convention. See, e.g., White v. White, 718 F.3d 300, 304-06 (4th Cir.2013) (holding that the mother’s removal of her son from Switzerland was not wrongful under the Hague Convention because the child’s father lacked custody rights under Swiss law, giving her sole custody of the child and the exclusive authority to move with him to the United States). Instead, Derek contends that Mary wrongfully “retained” JMR in the United States on or after March 30, 2011, when she failed to return with him to Ireland in violation of the Irish court’s guardianship and custody order. This is an unconventional use of the Hague Convention — one that raises a threshold question about its scope. The child-return remedy is a potent and important one, but its application is limited, and the limited nature of the remedy must be kept in mind to avoid drawing federal courts into the merits of international custody disputes. See Koch v. Koch, 450 F.3d 703, 711 (7th Cir.2006) (“An action under the Convention and ICARA is not an action to determine the merits of custody rights.”). The Hague Convention is an anti-abduction treaty; it is “ ‘not a treaty on the recognition and enforcement of [foreign] decisions on custody.’ ” Barzilay v. Barzilay, 600 F.3d 912, 921-22 (8th Cir.2010) (quoting Elisa Pérez-Vera, Explanatory Report on the 1980 Hague Child Abduction Convention, in Hague Conference on Private Int’l Law, 3 Acts and Documents of the Fourteenth Session, Child Abduction 426, 435 (1982)); see also Koch, 450 F.3d at 711 (recognizing the Pérez-Vera report as the official history of the Hague Convention and an authoritative source of its meaning and scope); Holder v. Holder, 392 F.3d 1009, 1013 (9th Cir.2004) (same). “The Convention’s procedures are not designed to settle international custody disputes, but rather to restore the status quo prior to any wrongful removal or retention, and to deter parents from engaging in international forum shopping" }, { "docid": "23647050", "title": "", "text": "where the child remains in the physical care of the petitioner, it is impossible “to return the child directly to the applicant.” Id. That is so because there has been no “retention” within the meaning of the Convention. There having been no retention, there can have been no “wrongful retention.” IV. Because the state court’s ne exeat order does not constitute a “retention” within the meaning of the Hague Convention, we conclude that the district court did not err in granting McConnell’s motion to dismiss. AFFIRMED. EDMONDSON, Chief Judge, CONCURS in the result. . The complaint does not specify the results of the DNA test, but elsewhere it alleges that Pielage was \"pregnant with Mr. McConnell's child.” In addition, McConnell filed an amended petition in state court alleging that he is the father. So, both parties agree that McConnell is the father. . At oral argument, the parties informed us that a final custody hearing had been scheduled for September 20, 2007, but it was continued to December 3, 2007. They have since informed us that the hearing had been continued yet again. It is not clear whether the pendency of this federal court proceeding has contributed to the delay in resolving the state court litigation, but we hope that the state court will not interpret anything that the district court has said or that we are saying as a reason not to decide that case as soon as it otherwise would. .Pielage did not suggest to the state court that it lacked jurisdiction to decide the paternity, child custody, child support, or any other issues until she filed on November 21, 2007 a motion to dismiss the case on the ground that under Alabama's version of the Uniform Child Custody and Jurisdiction and Enforce-mént Act, his home state was the Netherlands. That motion apparently remains pending. . As we noted in Ruiz, \"Elisa Perez-Vera was the official Hague Conference reporter whose report is 'recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of" }, { "docid": "14844353", "title": "", "text": "Pérez-Vera, Hague Conference on Private International Law 428-29, ¶ 13 (1982) (hereinafter, “Pérez-Vera Report ”). The Convention seeks to eliminate the motivation for such actions by requiring the court of the “requested State,” or the country to which the child has been removed, to return a wrongfully removed or retained child to his or her country of habitual residence, unless the removing party establishes an exception or defense to return. Hague Convention, art. 12. Unless and until there is a determination that the child need not be returned, “the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody.” Id. art. 16. “[T]he Convention rests implicitly upon the principle that any debate on the merits of the question, i.e. of custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal ...Pérez-Vera Report at 430, ¶ 19. Articles 3,12, and 13 are the main provisions that the courts of contracting states must apply in adjudicating Hague petitions. Article 12, in relevant part, requires that [wjhere a child has been wrongfully removed or retained in terms of Article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. Article 3, in turn, provides that a removal or retention is “wrongful” when (a) it is in breach of rights of custody attributed to a person ... either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. In the event that a" }, { "docid": "22067016", "title": "", "text": "of custody. Article 13 of the Convention, however, provides certain exceptions to the duty to return a wrongfully retained child to its state of habitual residence. Because the district court decided that there was no wrongful retention under Article 8, it had no occasion to examine whether any of these exceptions were applicable. Unlike Article 3, which restricts a court’s inquiry to the state of affairs prevailing immediately prior to the retention or removal alleged to be wrongful, see page 1070 supra, two of the exceptions in Article 13— namely, the risk of physical or psychological harm and objection by a mature child to its return — depend on circumstances at the time a child’s return is to be ordered. Should the district court find a wrongful retention to have occurred, it must make a prompt determination as to whether either of these exceptions is applicable and, if not, order the return of the children to Israel forthwith. REVERSED and REMANDED. The mandate shall issue at once. Fed. R.App.P. 2. . One was aged nine years, and the other two five years, at the time of the district court’s decision. . 19 I.L.M. 1501 (entered into force October 25, 1980), also available at <http:// www.hcch.netlelconventionsltext28e.html >. .Elisa Perez-Vera was the official Hague Conference reporter, and her explanatory report is “ 'recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it’ ” Shalit v. Coppe, 182 F.3d 1124, 1127-28 (9th Cir.1999) (quoting Legal Analysis of the Hague Convention on the Civil Aspects of International Child Abduction, 51 Fed.Reg. 10503 (1986)). The full text of the Perez-Vera Report is available online at <http:// www.hcch.net/e/conventions/expl28e.html>. . See Hague Conference of Private International Law: Report of the Second Special Commission Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction, 33 I.L.M. 225, 225 (1994). The Convention has been implemented by Congress in the International Child Abduction Remedies Act, 42 U.S.C." }, { "docid": "15631772", "title": "", "text": "(S.D.N.Y. Aug. 31, 2007) (same); Anderson v. Acree, 250 F.Supp.2d 872, 875 (S.D.Ohio 2002) (same); Toren v. Toren, 26 F.Supp.2d 240, 244 (D.Mass.1998) (same), vacated on other grounds, 191 F.3d 23 (1st Cir.1999). B. The History and Purpose of the Article 12 Now Settled Exception Tolling the time before a parent can raise the settled defense is also inconsistent with the treaty’s purpose. A report prepared by the official Hague Conference reporter for the Convention, Elisa Pérez-Vera, provides an overview of the Convention’s goals and a detailed analysis of each of its provisions. Elisa Pérez-Vera, Explanatory Report, in 3 Conférence de la Haye de droit international privé, Actes et Documents de la Quatorziéme session, Enlevement d’enfants 426 (1982) (“Pérez-Vera Report”), available at www.hcch.net/upload/expl28.pdf. Both the Convention’s text and the Pérez-Vera Report state that the treaty’s primary aim is to deter family members from removing children to jurisdictions more favorable to their custody claims in order “to obtain a right of custody from the authorities of the country to which the child has been taken.” Pérez-Vera Report at 429 ¶ 13; Convention, art. 1 (“The objects of the present Convention are — (a) to secure the prompt return of children wrongfully removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.”). To that end, the Convention “places at the head of its objectives the restoration of the status quo, by means of ‘the prompt return of children wrongfully removed to or retained in any Contracting state.’ ” Id. at ¶ 16. It is true that nothing in the text of the “dispositive part of the Convention ... reference^] ... the interests of the child to the extent of their qualifying the Convention’s stated object.” Id. at 431 ¶ 23. But the Pérez-Vera Report cautions against construing the Convention’s “silence on this point” as “leading] one to the conclusion that the Convention” suggests that children’s interests should be “ignore[d]” when “regulating all the problems which concern them.” Id." }, { "docid": "15631771", "title": "", "text": "sole ground that the child is settled in its new environment, if more than one year has elapsed between the abduction and the petition for return.” 238 F.3d at 164. Put differently, “if more than one year has passed, a ‘demonstration] that the child is now settled in its new environment’ maybe a sufficient ground for refusing to order repatriation.” Id. Thus, while the text of Article 12 does not prohibit equitable tolling, the way the provision functions renders this sort of equitable relief unnecessary. Unlike a statute of limitations prohibiting a parent from filing a return petition after a year has expired, the settled defense merely permits courts to consider the interests of a child who has been in a new environment for more than a year before ordering that child to be returned to her country of habitual residency. See Lozano, 809 F.Supp.2d at 227-28 (reasoning that the one-year period in Article 12 is not analogous to a statute of limitations); Matovski v. Matovski, No. 06 Civ. 4259(PKC), 2007 WL 2600862, at *12 (S.D.N.Y. Aug. 31, 2007) (same); Anderson v. Acree, 250 F.Supp.2d 872, 875 (S.D.Ohio 2002) (same); Toren v. Toren, 26 F.Supp.2d 240, 244 (D.Mass.1998) (same), vacated on other grounds, 191 F.3d 23 (1st Cir.1999). B. The History and Purpose of the Article 12 Now Settled Exception Tolling the time before a parent can raise the settled defense is also inconsistent with the treaty’s purpose. A report prepared by the official Hague Conference reporter for the Convention, Elisa Pérez-Vera, provides an overview of the Convention’s goals and a detailed analysis of each of its provisions. Elisa Pérez-Vera, Explanatory Report, in 3 Conférence de la Haye de droit international privé, Actes et Documents de la Quatorziéme session, Enlevement d’enfants 426 (1982) (“Pérez-Vera Report”), available at www.hcch.net/upload/expl28.pdf. Both the Convention’s text and the Pérez-Vera Report state that the treaty’s primary aim is to deter family members from removing children to jurisdictions more favorable to their custody claims in order “to obtain a right of custody from the authorities of the country to which the child has been taken.” Pérez-Vera" }, { "docid": "22586398", "title": "", "text": "for guidance: (1) the Explanatory Report by Elisa Perez-Vera, the official Hague Conference reporter (the “Perez-Vera Report”), and (2) the Legal Analysis of the Hague Convention on the Civil Aspects of International Child Abduction (“Legal Analysis”) found in the Federal Register. 51 Fed.Reg. 10503 (1986). As the Legal Analysis notes: [The Perez-Verez] explanatory report is recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it. Id. We underscore that the Hague Convention analysis is not a determination of custody rights. Under Article 19 of the Hague Convention and 42 U.S.C. § 11601(b)(4), “a United States district court has authority to determine the merits of an abduction claim, but not the merits of the underlying custody claim.” See, e.g., Friedrich v. Friedrich, 983 F.2d 1396, 1400 (6th Cir.1993) (“Friedrich I ”) (citing 42 U.S.C. § 11601(b)(4)) (emphasis added). The court is to determine only whether the removal or retention of a child was “wrongful” under the law of the child’s “habitual residence,” and if so, to order the return of the child to the place of “habitual residence” for the court there to decide the merits of the custody dispute, unless the alleged abductor can establish one of a few defenses. See, e.g., Ohlander v. Larson, 114 F.3d 1531, 1534, 1541 (10th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 702, — L.Ed.2d - (1998); Friedrich II, 78 F.3d at 1067. The Legal Analysis states the proposition clearly: The obligation to return an abducted child to the person entitled to custody arises only if the removal or the retention is wrongful within the meaning of the Convention. 51 Fed.Reg. at 10506. II. SHALIT’S PETITION AT SUMMARY JUDGMENT In his petition, Shalit alleged that Yar-den must be returned to Israel because Coppe’s retention of Yarden was “wrongful” under Article 3 of the Hague Convention. Shalit had the burden of proving by a preponderance of the evidence that (1) Coppe retained Yarden away from his “habitual residence,”" }, { "docid": "22983572", "title": "", "text": "drafters, and (D) case-law in other signatory states. A. Purpose and Framework of the Convention The Hague Convention, to which the United States and Hong Kong are signatories, \"was adopted as an effort “to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence, as well as to secure protection for rights of access.” Hague Convention, Preamble, 51 Fed.Reg. at 10,-498. The Convention rests on the principle that a child’s country of “habitual residence” is “best placed to decide upon questions of custody and access.” Elisa Pérez-Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session (Child Abduction) 426, 434-35, ¶ 34 (1980) (“Pérez-Vera Report”). In order to “preserve the status quo and to deter parents from crossing international boundaries” to secure a more favorable forum for the adjudication of custody rights, Blondin v. Dubois, 189 F.3d 240, 246 (2d Cir.1999) (internal quotation marks omitted), the Convention provides for the return of children “wrongfully removed to or retained in any Contracting State.” Hague Convention, art. 1, 51 Fed.Reg. at 10,498. A removal or retention is to be considered “wrongful” where: a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and b) at the time of removal or retention those rights were actually exercised, ei- . ther jointly or alone, or would have been so exercised but for the removal or retention. Id. art. 3, 51 Fed.Reg. at 10,498 (emphasis added). Rights of custody “may arise in particular by operation of law or by reason of a judicial or administrative decision, or by reason of an agreement having legal effect under the law of that State.” Id. Thus an order of return is available as a remedy only for wrongful removals or retentions, and removals or retentions are wrongful only if" }, { "docid": "11886702", "title": "", "text": "Legal Analysis, 51 Fed. Reg. 10,494, 10,604 (Mar, 26, 1986). “It is well settled that the Executive Branch’s interpretation of a treaty ⅛ entitled to great weight.’ ” Abbott v. Abbott, 560 U.S. 1, 15, 130 S.Ct. 1983, 176 L.Ed.2d 789 (2010) (quoting Sumitomo Shoji Am., Inc. v. Avagliano, 457 U.S. 176, 185, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (deferring to the State Department’s interpretation of a provision of the Hague Convention)). Cus-todio provides no reason to doubt that deference to the State Department’s interpretation of the age cutoff is appropriate here. The State Department’s interpretation is supported by the official Hague Conference Explanatory Report, which is recognized “as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention.” Barzilay v. Barzilay (Barzilay II), 600 F.3d 912, 916 n.6 (8th Cir. 2010) (quotation omitted). The Explanatory Report is plain that “no action or decision based upon the Convention’s provisions can be taken with regard to a child after its sixteenth birthday.” Elisa Pérez-Vera, Explanatory Report: Hague Convention on Private International Law ¶ 77 (1981), https://assets.hcch.neV upload/expl28.pdf. Because M. turned 16 during the pen-dency of these proceedings, the Hague Convention no longer applies to him. The court dismisses as moot the appeal as to M. We address Custodio’s remaining arguments solely as they apply to G. II. Mature Child Defense “The principal objectives of the Convention are ‘to secure the prompt return of children wrongfully -removed to or retained in any Contracting State’ and ‘to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States.’ ” Barzilay v. Barzilay (Barzilay I), 536 F.3d 844, 846 (8th Cir. 2008) (quoting Hague Convention art. 1). To establish a prima facie case for return of the child under the Convention, the petitioner must show, by a preponderance of the evidence, that: (1) immediately prior to removal or retention, the child habitually resided in another Contracting State; (2) the removal or retention was in breach of the petitioner’s" }, { "docid": "22456506", "title": "", "text": "Convention is primarily concerned with the “use of force to establish artificial jurisdictional links on an international level, with a view to obtaining custody of a child.” Elisa Pérez-Vera, Explanatory Report, in 3 Conférence de La Haye de droit international privé, Actes et Documents de la Quatorziéme session, Enlevement d’en-fants 426, 428, ¶ 11 (1982) [hereinafter Pér-ez-Vera Report]. The Convention was especially aimed at the unilateral removal or retention of children by those close to them, such as parents, guardians, or family members. See Paul R. Beaumont & PeteR E. MoEleavy, The Hague Convention on International Child Abduction 1-3 (1999) [hereinafter Beaumont & MoEleavy], To deter family members from removing children to jurisdictions more- favorable to their custody claims in order “to obtain a right of custody from the authorities of the country to which the child has been taken,” id. at 429, ¶ 13, the Hague Convention attempts “to deprive [their] actions of any practical or juridical consequences,” id. at 429, ¶ 16. The Convention consequently “places at the head of its objectives the restoration of the status quo, by means of ‘the prompt return of children wrongfully removed to or retained in any Contracting State’.” Id. Both the United States and Israel are signatories to the Hague Convention. See Hague Conference on International Law: Report of the Second Special Commission Meeting to Review the Operation of the Hague Convention on the Civil Aspects of International Child Abduction, 33 I.L.M. 225, 225 (1994). A petitioner cannot invoke the protection of the Hague Convention unless the child to whom the petition relates is “habitually resident” in a State signatory to the Convention and has been removed to or retained in a different State. The petitioner must then show that the removal or retention is “wrongful.” Article 3 of the Hague Convention provides that: The removal or the retention of a child is to be considered wrongful where— a. it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child" }, { "docid": "14844408", "title": "", "text": "so. REVERSED and REMANDED. APPENDIX Asvesta v. Petroutsas No. 08-15365 . The district court stayed enforcement of the judgment pending appeal. . The explanatory report of Elisa Pérez-Vera, the official Hague Conference reporter, is “recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed.Reg. 10494, 10503 (Mar. 26, 1986). . Article 20 also provides another exception to the return of a child, not relevant to this case, when the return \"would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms.” . The parties dispute the existence of other factors, including infidelity and abuse, that may have led to the failure of their marriage. These allegations are, for the most part, irrelevant to this appeal. To the extent that allegations of abuse are relevant, we take note of them as appropriate. . Although the California court in its order used terms that ring of a Hague Convention proceeding, Petroutsas did not seek relief from the California court pursuant to the Hague Convention or ICARA. . The Hague Convention requires each contracting state to designate a \"Central Authority” to \"coordinate and’ channel' \" the cooperation among contracting states that the Convention envisions. Pérez-Vera Report at 437, ¶ 42; see also Hague Convention, art. 6. \"The Central Authority of the State where [a wrongfully removed or retained] child is shall take ... all appropriate measures in order to obtain the voluntary return of the child.” Id. art. 10. If a Central Authority receives a petition concerning a child not located in that country, \"it shall directly and without delay transmit the application to the Central Authority of that Contracting State [where the child is located] and inform that Contracting State and inform the requesting Central Authority or the applicant.” Id. art. 9. . An official translation of the Greek court's ruling is attached as" }, { "docid": "15631792", "title": "", "text": "language of Article 12 expressly starts the running of the one-year period \"from the date of the wrongful removal or retention.” It would have been a simple matter, if the state parties to the Convention wished to take account of the possibility that an abducting parent might make it difficult for the petitioning parent to discover the child's whereabouts, to run the period \"from the date that the petitioning parent learned [or, could reasonably have learned] of the child’s whereabouts.” But the drafters did not adopt such language. As discussed below, the drafting history demonstrates that this was a conscious choice, and that the drafters specifically rejected a proposal to have a different date trigger the start of the one-year period when the child's whereabouts had been concealed. See infra at 53-54. .The ICARA provides that \"the 'commencement of proceedings,' as used in Article 12 of the Convention,\" does not occur until a person files a petition in a civil action for the return of the child in a court that has jurisdiction in the place where the child is located at the time the petition is filed. 42 U.S.C. §§ 11603(b), (f)(3). . This interpretation of Article 12 is further bolstered by Article 18, which provides that none of the provisions in the Convention ‘‘limit the power of a judicial or administrative authority to order the return of the child at any time.” Convention, art. 18. . Elisa Pérez-Vera was \"the official Hague Conference reporter for the Convention.” Hague International Child Abduction Convention; Text and Legal Analysis, 51 Fed. Reg. at 10,503. \"Her explanatory report [was] recognized by the Conference as the official history and commentary on the Convention,” id.., and we have previously held that \"it is an authoritative source for interpreting the Convention’s provisions,” Croll v. Croll, 229 F.3d 133, 137 n. 3 (2d Cir.2000) (citation omitted), abrogated on other grounds by Abbott, 130 S.Ct. 1983; see also Gitter, 396 F.3d at 129 & n. 4. . The Government’s brief notes that after the drafters had settled on a single time-limit, the United States \"urged a longer" }, { "docid": "4230718", "title": "", "text": "and Abbott I primarily concerned whether ne exeat clauses vest a custody right in their intended beneficiaries. We also confronted Convention-related matters in two unpublished cases. See Dietz v. Dietz, 349 Fed.Appx. 930 (5th Cir.2009); Grube v. Grube, 285 Fed.Appx. 145 (5th Cir.2008). Both short per curiam opinions, Dietz and Grube provide limited guidance. Dietz concerned the Convention's one-year limitations and “age and maturity” exceptions. The two-paragraph Gmbe opinion disposed of the respondent's three issues on appeal as frivolous and waived. . “Elisa Pérez-Vera was the official Hague Conference reporter, and her explanatory report is 'recognized by the Conference as the official history and commentary on the Convention and is a source of background on the meaning of the provisions of the Convention available to all States becoming parties to it.’ ” Mozes v. Mozes, 239 F.3d 1067, 1070 n. 3 (9th Cir.2001) (citation omitted); see also Robert v. Tesson, 507 F.3d 981, 988 n. 3 (6th Cir.2007) (noting that the Explanatory Report is considered \"an authoritative source for interpreting the Convention’s provisions” (citations omitted)). . Article 13(a) of the Convention in relevant part provides: Notwithstanding the provisions of the preceding Article, the judicial or administrative authority of the requested State is not bound to order the return of the child if the person, institution, or other body which opposes its return establishes that— a) the person, institution or other body having the care of the person of the child was not actually exercising the custody rights at the time of removal or retention, or had consented to or subsequently acquiesced in the removal or retention .... . Because the petitioner’s \"subjective intent” is the touchstone for both \"consent” and “acquiescence” under Article 13(a), the two concepts are essentially coterminous for Convention purposes. See Baxter, 423 F.3d at 371-72. The terms appear to be distinguished only by their temporal focus and \"degree of formality.” Id. Consent applies to pre-removal/retention activity and may be shown by less \"formal” types of evidence, id., whereas acquiescence applies to post-removal/retention activity and generally requires more \"formal” evidence such as a custody order or other" }, { "docid": "23543784", "title": "", "text": "1986). Moreover, the Department has cautioned that Article 13 “was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child’s best interests.” Id. The Greek courts’ use of Article 13(b) appears to involve little more than an assessment of the children’s best interests. Despite these concerns, we see no reason not to defer to the Greek courts’ fundamental ruling that Diorinou’s retention of the children in Greece in September 1995 was not wrongful, even if not expressly agreed to by Mezitis. Those courts reasonably found that Mezitis ignored the children during what was to have been the 1995 family summer vacation in Greece and stayed with his mother. At the end of the summer, he cancelled his ticket to return with one child on the flight for which Diorinou was to return with the other child, and did not inform Diorinou of his abrupt change of plans. She tried to return with the children on his flight, but could not get tickets. After she flew alone to New York, he refused her offer to return to Greece with her to bring the children to New York pending the divorce proceeding. Having found these circumstances, the Greek Hague petition courts made an entirely supportable determination that Diorinou had not wrongfully retained the children in Greece. Consideration of custody adjudications. Our deference to the Greek Hague petition rulings that Diorinou did not wrongfully retain the children in Greece in 1995 does not necessarily end our consideration of whether Mezitis’s removal of the children in 2000 requires an order for their return. The Convention contemplates that any wrongful removal (or retention) will be remedied by an order for return so that the issue of custody can be properly determined by a court of competent jurisdiction. See Elisa Pérez Vera, Explanatory Report: Hague Conference on Private International Law, in 3 Acts and Documents of the Fourteenth Session ¶ 19 (1980) {“Pérez Vera Report ”), available at <http://www.hcch.net/e/conventions/menu28e.html>. As the Pérez Vera Report states, “the Convention rests implicitly upon the principle that any debate on the merits of the" } ]

[ { "docid": "1219323", "title": "", "text": "of the class. Once more, whether or not the denials of cross-training (1) are discriminatory or (2) affect promotional opportunities are issues to be resolved on the merits and not on the current motion. Marriott also says Meiresonne’s and Reedy’s claims of retaliation are atypical. Plaintiffs advance a persuasive response: If that were a bar to certification, any defendant could insulate itself from a class action by retaliating against anyone who brought or threatened to bring a lawsuit. It remains for the future shaping of the litigation to see how any individual retaliation claims can be linked with the class claims. Unless and until a total unlinkage were forced to be made, however, the mere presence of retaliation claims should not be permitted to destroy plaintiffs’ ability to represent the class. Finally Marriott asserts plaintiffs’ claims of sexual hostility are atypical. But P.R. Mem. 21-24 has chronicled about a dozen individual incidents of such discrimination, as well as expressions of general attitudes prevalent in the F & B area. Most importantly for purposes of typicality, plaintiffs are not claiming damages for all class members based on individual incidents of sexual hostility. Instead they are alleging an atmosphere of sexual hostility that evidences discrimination. As said earlier, plaintiffs are not now called upon to provide conclusive proof of such an atmosphere. 4. Adequacy of Representation Marriott’s arguments of inadequacy of representation (D.Mem. 19-20) revolve primarily around plaintiffs’ claimed atypicality. Because this opinion has just found typicality, those arguments are of no further moment. Marriott also contends that because class mémbers compete against each other for the same promotions, none can adequately represent the class. That absurd proposition would of course doom almost every class action charging discrimination in promotion—a drastic rewrite of the law in this area. After all, when no woman is promoted, it is impossible to determine which one should have been (see Armstrong, 117 F.R.D. at 627 & n. 10 and cases cited there). In the universe Marriott would create, discrimination law would be simpler because class-discriminatory promotion would be cost-free. That view must of course be rejected." } ]

[ { "docid": "21310730", "title": "", "text": "that future possibility does not preclude a finding of commonality (id. at 291-92). To the contrary, a demonstration (often via anecdotal or statistical evidence or both) that such a subtle form of discrimination has been common to class members can suffice (id. at 292; Adams v. R.R. Donnelley & Sons, No. 98 C 4025, 96 C 7717, — F.Supp.2d —, —, —, 2001 WL 336830, at *9, 13 (N.D.Ill. Apr. 6)). Here plaintiffs have produced both statistical and anecdotal evidence in support of their argument. First plaintiffs point to Nike’s own employment records showing a marked racial disparity in both the stockroom and cashier positions during the relevant time period: 79 African-Americans as opposed to 8 Caucasians were employed in the stockroom, while 57 African-Americans as compared with 15 Caucasians were employed as cashiers (P.R. Mem.17-18). While as Nike argues the plaintiffs’ failure to control for some relevant variables (such as the racial makeup of the applicant pool) may well undermine the eventual persuasiveness of that statistical data at trial (N. Mem.44-46), such an inquiry into the merits of that data would involve “statistical dueling” inappropriate at this stage of the litigation (Caridad, 191 F.3d at 292; Wilfong, 2001 WL 1795093, at *3 n. 5; Radmanovich, 216 F.R.D. at 431 n. 2). And plaintiffs further support those statistics with anecdotal evidence from African-American applicants who were hired into stockroom or cashier positions, even those who voiced no preference for such positions, or in some cases who affirmatively sought other positions (P. Mem.13-14). Such statistical and anecdotal evidence establishes commonality. Nike’s challenge to this subclass’ typicality similarly fails. As with the overall class, plaintiffs claim that Nike discriminated against them by placing them in less desirable positions — either as cashiers or in the stockroom, either upon hiring or later in their tenure — due to their race. In the face of such “similarity of legal theory,” such that both the named plaintiffs and the class members were “subject to the same allegedly unlawful practices,” any differences of fact that exist between the two are insufficient to negate typicality (De La" }, { "docid": "21310731", "title": "", "text": "into the merits of that data would involve “statistical dueling” inappropriate at this stage of the litigation (Caridad, 191 F.3d at 292; Wilfong, 2001 WL 1795093, at *3 n. 5; Radmanovich, 216 F.R.D. at 431 n. 2). And plaintiffs further support those statistics with anecdotal evidence from African-American applicants who were hired into stockroom or cashier positions, even those who voiced no preference for such positions, or in some cases who affirmatively sought other positions (P. Mem.13-14). Such statistical and anecdotal evidence establishes commonality. Nike’s challenge to this subclass’ typicality similarly fails. As with the overall class, plaintiffs claim that Nike discriminated against them by placing them in less desirable positions — either as cashiers or in the stockroom, either upon hiring or later in their tenure — due to their race. In the face of such “similarity of legal theory,” such that both the named plaintiffs and the class members were “subject to the same allegedly unlawful practices,” any differences of fact that exist between the two are insufficient to negate typicality (De La Fuente, 713 F.2d at 232). Finally, Nike contests the adequacy of the named subclass representatives, claiming that they are unsuitable representatives because they were in competition with their fellow class members for the same positions (N. Mem.27). While Patterson v. Gen. Motors Corp., 631 F.2d 476, 482 (7th Cir.1980) did note the possibility that such competition might sometimes impact the adequacy of representation, this Court has previously made clear its rejection of such an argument in a context more comparable to the present one (Meiresonne v. Marriott Corp., 124 F.R.D. 619, 625 (N.D.Ill.1989)). Promotion Plaintiffs estimate that “all or most” of the over 230 African-Americans employed by NTC during the relevant period were either denied promotions or deprived of the ability to pursue promotions due to their race (P.R. Mem.24). At this threshold stage that meets the numerosity requirement despite Nike’s standard objection. Plaintiffs have also demonstrated that this subclass satisfies commonality. While Nike again contends that the circumstances surrounding individual class members’ claims are idiosyncratic (N. Mem.4244), plaintiffs have produced evidence of a question" }, { "docid": "21310723", "title": "", "text": "AMRO Mortgage Group, Inc., No. 01 C 713, 2004 WL 1880008, at *5 (N.D.Ill. Aug. 3)). Hostile Work Environment In establishing numerosity for their hostile work environment class, plaintiffs contend that the class should encompass all African-Americans employed by Nike Chicago between December 17, 1999 and the present — a group of over 230 individuals, according to Nike Chicago’s personnel records (P. Mem.30). While there is no magic number that automatically satisfies numerosity, it is often said that 40 members (Toney v. Rosewood Care Ctr., Inc., No. 98 C 0693, 1999 WL 199249, at *6 (N.D.Ill. Mar. 31)), or even fewer (Markham v. White, 171 F.R.D. 217, 221 (N.D.Ill.1997)), are enough to make up a class. It is beyond cavil that the much larger class size urged by plaintiffs would make joinder impracticable (id.). Nike argues in opposition that plaintiffs’ figure is inflated. As Nike would have it, some plaintiffs have said they were not witness to, or were not subjected to, some or all of the alleged harassing conduct, so that they could have no hostile work environment claims (N. Mem.52). Even if this Court were to accept Nike’s contention — something that would likely involve an inappropriate inquiry into the merits (Markham, 171 F.R.D. at 221) — all it would demonstrate is that in the end plaintiffs’ contended-for class size is not 100% accurate. But all that plaintiffs need do at this stage is to present a good faith estimate (Radmanovich, 216 F.R.D. at 431), and they have surely done so here. Nike also challenges commonality, claiming in essence that the purported class members’ claims and experiences are too individualized for commonality to exist (N. Mem.41). For example, Nike observes that different class members were subjected to different forms and intensities of harassment — due in part, Nike supposes, to their having worked different shifts under different supervisors — and that individual class members’ differing circumstances open their claims to a variety of idiosyncratic defenses (N. Mem.36-40). But that is at odds with our Court of Appeals’ teaching — both in general and in the specific context of" }, { "docid": "21310740", "title": "", "text": "already-constructed wheel of commonality for Benefits subclass purposes. Once more plaintiffs have adduced adequate evidence to support their claim that all class members— despite variations in their circumstances and in their susceptibility to potential defenses— have a common central issue: whether Nike discriminated in applying its benefits guidelines to African-American employees through a decentralized “corporate policy” that left such decisions to the subjective discretion of local managers. Plaintiffs point to the testimony of a number of plaintiffs and class members who assert that they were denied employment benefits to which they were entitled (P. Mem. 22-23; P.R. Mem. 30) , then support the classwide reach of that common question by pointing to the disparity between the raw numbers of Caucasian and African-Americans employed and hired in part-time positions (P.R. Mem.30-31) . Those raw numbers are of course subject to challenge as nondispositive, but that is again a matter to be resolved at trial, not here. Nor is typicality undermined by individualized differences among named plaintiffs and the subclass at large — such as whether employees were available for full-time hours, the availability of full-time positions, whether employees sought full-time employment and benefits and which benefits were denied. As with previous subclasses, such differences no doubt exist, but again class members and named plaintiffs alike share the same fundamental claim that they were subjected to racially-biased application of Nike’s benefit policies. And that is enough to satisfy typicality here. Finally and with one exception, the named plaintiffs also adequately represent this subclass. As before, Nike’s now-familiar “conflict” argument — based this time on (1) competition between plaintiffs and class members for the same full-time positions and (2) “conflicts between the hourly employees who were denied full-time hours and benefits, and the African-American managers who were involved in those decisions” (N. Mem.28) — fails to convince this Court that plaintiffs are inadequate representatives. This opinion has already made plain this Court’s view on “conflicts” due to competition, and this time the absence of managers among the subclass’ named plaintiffs adequately addresses Nike’s objection to managers representing hourly employees. That said, however, Nike’s" }, { "docid": "21310728", "title": "", "text": "to act on complaints of harassment (N. Mem.26). While it is certainly true that having supervisors represent nonsupervisory employees can create conflicts sufficient to undercut adequacy of representation (Radmanovich, 216 F.R.D. at 434), this is not such a case. In that respect the deposition excerpts cited by Nike offer little evidence of such a conflict. Instead they show only that complaints were made to African-American managers, and they offer little if any information about what those managers might have done or failed to do with that information (N. Mem.6). But in any case the fundamental test for adequate representation is whether the named plaintiffs “possess the same interest and suffer the same injury as the class members” they represent (Amchem, 521 U.S. at 625-26, 117 S.Ct. 2231 (citation and internal quotation marks omitted)). Here the strength of the common injury and interest shared by the named plaintiffs and class members — the harm caused by an allegedly hostile work environment and the interest in eliminating that environment — plainly overrides any potential conflicts (Jefferson v. Windy City Maint, Inc., No. 96 C 7686, 1998 WL 474115, at *9 (N.D.Ill. Aug. 4)). Job Segregation Nike’s own employment records reflect that there were over 130 African-Americans employed in either stockroom or cashier positions during the relevant period (P.R. Mem.15). Hence what was said as to numerosity in the hostile work environment context applies here too. As to commonality, there are of course differences among the various class members’ circumstances and experiences of the alleged “job segregation” (N. Mem.4243). But it has already been said that the existence of such factual variations does not negate that element so long as at least one common question exists. Here, at a minimum, there is such a question: whether Nike discriminated in assigning positions to African-American employees by means of “a corporate policy that [leaves] hiring decisions to the unfettered discretion of NTC’s ‘local level’ managers” (P.R. Mem.16). While proving that such a decentralized and subjective decisionmaking process is discriminatory may perhaps “be extremely difficult” (Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999))," }, { "docid": "21310732", "title": "", "text": "Fuente, 713 F.2d at 232). Finally, Nike contests the adequacy of the named subclass representatives, claiming that they are unsuitable representatives because they were in competition with their fellow class members for the same positions (N. Mem.27). While Patterson v. Gen. Motors Corp., 631 F.2d 476, 482 (7th Cir.1980) did note the possibility that such competition might sometimes impact the adequacy of representation, this Court has previously made clear its rejection of such an argument in a context more comparable to the present one (Meiresonne v. Marriott Corp., 124 F.R.D. 619, 625 (N.D.Ill.1989)). Promotion Plaintiffs estimate that “all or most” of the over 230 African-Americans employed by NTC during the relevant period were either denied promotions or deprived of the ability to pursue promotions due to their race (P.R. Mem.24). At this threshold stage that meets the numerosity requirement despite Nike’s standard objection. Plaintiffs have also demonstrated that this subclass satisfies commonality. While Nike again contends that the circumstances surrounding individual class members’ claims are idiosyncratic (N. Mem.4244), plaintiffs have produced evidence of a question common to all class members: whether they were subjected to “diminished promotional opportunities” due to the “discretion and subjective decision making power” wielded by NTC managers (P.R. Mem.21). Although plaintiffs offer no supporting statistical evidence, they provide considerable anecdotal evidence of promotional discrimination — describing unposted openings, denied applications for promotions and repeated discouragements of employees from applying in the first place (P. Mem. 15-16; P.R. Mem. 21-22). Some of those experiences may well have legitimate explanations — for example, Nike offers its own statistical evidence to show there was no promotional discrimination at Nike Chicago — but such explanations, as well as inferences sought to be drawn from Nike’s statistics, address the merits of the class members’ claims and not the relevant current question: whether the class members’ claims are similar enough to warrant class treatment. On that score, plaintiffs’ evidence suffices. One limitation operates in that respect, at least for the present. It will be recalled that plaintiffs’ basis for commonality points to the role of “local level” managers in carrying out promotional" }, { "docid": "21310729", "title": "", "text": "Windy City Maint, Inc., No. 96 C 7686, 1998 WL 474115, at *9 (N.D.Ill. Aug. 4)). Job Segregation Nike’s own employment records reflect that there were over 130 African-Americans employed in either stockroom or cashier positions during the relevant period (P.R. Mem.15). Hence what was said as to numerosity in the hostile work environment context applies here too. As to commonality, there are of course differences among the various class members’ circumstances and experiences of the alleged “job segregation” (N. Mem.4243). But it has already been said that the existence of such factual variations does not negate that element so long as at least one common question exists. Here, at a minimum, there is such a question: whether Nike discriminated in assigning positions to African-American employees by means of “a corporate policy that [leaves] hiring decisions to the unfettered discretion of NTC’s ‘local level’ managers” (P.R. Mem.16). While proving that such a decentralized and subjective decisionmaking process is discriminatory may perhaps “be extremely difficult” (Caridad v. Metro-North Commuter R.R., 191 F.3d 283, 291 (2d Cir.1999)), that future possibility does not preclude a finding of commonality (id. at 291-92). To the contrary, a demonstration (often via anecdotal or statistical evidence or both) that such a subtle form of discrimination has been common to class members can suffice (id. at 292; Adams v. R.R. Donnelley & Sons, No. 98 C 4025, 96 C 7717, — F.Supp.2d —, —, —, 2001 WL 336830, at *9, 13 (N.D.Ill. Apr. 6)). Here plaintiffs have produced both statistical and anecdotal evidence in support of their argument. First plaintiffs point to Nike’s own employment records showing a marked racial disparity in both the stockroom and cashier positions during the relevant time period: 79 African-Americans as opposed to 8 Caucasians were employed in the stockroom, while 57 African-Americans as compared with 15 Caucasians were employed as cashiers (P.R. Mem.17-18). While as Nike argues the plaintiffs’ failure to control for some relevant variables (such as the racial makeup of the applicant pool) may well undermine the eventual persuasiveness of that statistical data at trial (N. Mem.44-46), such an inquiry" }, { "docid": "21310735", "title": "", "text": "decision making power” wielded by Nike Chicago managers. Of course proposed named plaintiff Barlow, as a manager himself, would likely have a difficult time demonstrating typicality, but the just-ruled exclusion of managers from this subclass in general moots any such concern. Barlow’s absence from the subclass also moots one of Nike’s concerns as to adequate representation. As Nike points out, several class members testified that Barlow was involved in the promotion-related actions and decisions of which they complain (N. Mem.27). While that conflict of interest is far more serious, and has far better evidentiary support, than that earlier addressed in the hostile work environment context, it does not affect the subclass’ satisfaction of this final element. Instead, Barlow’s removal as a putative subclass representative avoids the conflict (see Bell v. Woodward Governor Co., 2005 WL 23340, at *3 (N.D.Ill. Jan. 4)). Nike’s other objection to adequacy revisits its claim that competition between class members and class representatives for the same jobs creates a prohibitive conflict of interest (N. Mem.27). As before such competition is insufficient to negate adequacy of representation. Discipline As for numerosity, plaintiffs have produced a variety of accounts of African-American employees being subjected to disparate application of Nike Chicago work rules and punishments, as well as noting that 72 African-American Nike Chicago employees were terminated for violating store rules. While (as discussed later) plaintiffs’ suggestion (P. Mem.31) that all African-Americans employed by Nike Chicago during the relevant period would be part of the subclass is surely overinclusive, their presentations amply demonstrate that the Discipline subclass would still be large enough to make joinder impracticable. As to commonality, Nike once more argues that individual discipline-based claims would be too particularized (N. Mem.48). Again plaintiffs have produced enough anecdotal and statistical evidence that class members were subjected to the same general discriminatory application of discipline and workplace rules, due to the discretion granted local managers. First plaintiffs have produced a good deal of testimony, from plaintiffs and class members alike, describing discriminatory application of various workplace rules and policies (see P. Mem. 17-21). Plaintiffs have also brought evidence of" }, { "docid": "21310733", "title": "", "text": "common to all class members: whether they were subjected to “diminished promotional opportunities” due to the “discretion and subjective decision making power” wielded by NTC managers (P.R. Mem.21). Although plaintiffs offer no supporting statistical evidence, they provide considerable anecdotal evidence of promotional discrimination — describing unposted openings, denied applications for promotions and repeated discouragements of employees from applying in the first place (P. Mem. 15-16; P.R. Mem. 21-22). Some of those experiences may well have legitimate explanations — for example, Nike offers its own statistical evidence to show there was no promotional discrimination at Nike Chicago — but such explanations, as well as inferences sought to be drawn from Nike’s statistics, address the merits of the class members’ claims and not the relevant current question: whether the class members’ claims are similar enough to warrant class treatment. On that score, plaintiffs’ evidence suffices. One limitation operates in that respect, at least for the present. It will be recalled that plaintiffs’ basis for commonality points to the role of “local level” managers in carrying out promotional discrimination. While it is of course conceivable that even managers have been similarly subjected to such discrimination (perhaps by managers farther up the ladder but still “local,” such as Store Manager Wigod), plaintiffs have identified no instance of such actions being taken against managers — and if there were any such instances, it would also seem unlikely that they would add up to meet a numerosity test. So for now commonality will extend only to non-managerial African-American employees, and this subclass’ definition is limited accordingly (see Breedlove v. Tele-Trip Co., No. 91 C 5702, 1993 WL 284327, at *8 (N.D.Ill. July 27)). As to typicality, Nike’s challenges echo those it made to commonality, and once more they fall short. Again factual differences in individual claims do not denote a lack of typicality where, as here, the named plaintiffs claim to have been victimized by the same “practice or course of conduct” as their fellow class members (Keele, 149 F.3d at 595): that they were subjected to “diminished promotional opportunities” due to the “discretion and subjective" }, { "docid": "21310726", "title": "", "text": "as the named class representatives” (De La Fuente, 713 F.2d at 232-33). “[F]actual distinctions between the claims of the named class members and those of other class members” need not block a typicality finding (id.) — instead the question is whether the claims of the former “have the same essential characteristics” as those of the latter (Retired Chicago Police Ass’n, 7 F.3d at 597), looking to “the company’s actions” rather than to any “particularized defenses it might have against certain class members” (Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir.1996)). Despite that teaching, Nike first argues that many plaintiffs’ experiences are not representative of the class because they “concede that they personally were never subjected to such [racially harassing] practices at all” (N. Mem. 37, emphasis in original). But the portions of the record cited by Nike fail to support such an all-encompassing claim. Rather than demonstrating that such plaintiffs experienced no harassing conduct at all, as Nike suggests, the cited testimony shows only that some plaintiffs did not experience particular kinds of the numerous varieties of harassing conduct of which the class complains (N. Mem. 5 n. 3). It would be truly extraordinary if each named plaintiff had suffered each variety of alleged harassment described by their counsel. Instead they share with class members the common essential claim that a hostile work environment, manifested in a variety of ways, existed at Nike Chicago during the relevant time period — and that satisfies the typicality element. In the same vein, the possibility that a few named plaintiffs may not have complained of harassment — potentially opening their claims up to an affirmative defense under Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) — does not block a finding of typicality (see, e.g., Radmanovich, 216 F.R.D. at 433; Toney, 1999 WL 199249, at *8). Finally, as to Rule 23(a)(4), Nike suggests that the class is not adequately represented because one of its named plaintiffs is a manager who allegedly engaged in some of the very conduct of which the class complains: failing" }, { "docid": "21310727", "title": "", "text": "the numerous varieties of harassing conduct of which the class complains (N. Mem. 5 n. 3). It would be truly extraordinary if each named plaintiff had suffered each variety of alleged harassment described by their counsel. Instead they share with class members the common essential claim that a hostile work environment, manifested in a variety of ways, existed at Nike Chicago during the relevant time period — and that satisfies the typicality element. In the same vein, the possibility that a few named plaintiffs may not have complained of harassment — potentially opening their claims up to an affirmative defense under Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998) — does not block a finding of typicality (see, e.g., Radmanovich, 216 F.R.D. at 433; Toney, 1999 WL 199249, at *8). Finally, as to Rule 23(a)(4), Nike suggests that the class is not adequately represented because one of its named plaintiffs is a manager who allegedly engaged in some of the very conduct of which the class complains: failing to act on complaints of harassment (N. Mem.26). While it is certainly true that having supervisors represent nonsupervisory employees can create conflicts sufficient to undercut adequacy of representation (Radmanovich, 216 F.R.D. at 434), this is not such a case. In that respect the deposition excerpts cited by Nike offer little evidence of such a conflict. Instead they show only that complaints were made to African-American managers, and they offer little if any information about what those managers might have done or failed to do with that information (N. Mem.6). But in any case the fundamental test for adequate representation is whether the named plaintiffs “possess the same interest and suffer the same injury as the class members” they represent (Amchem, 521 U.S. at 625-26, 117 S.Ct. 2231 (citation and internal quotation marks omitted)). Here the strength of the common injury and interest shared by the named plaintiffs and class members — the harm caused by an allegedly hostile work environment and the interest in eliminating that environment — plainly overrides any potential conflicts (Jefferson v." }, { "docid": "21310724", "title": "", "text": "no hostile work environment claims (N. Mem.52). Even if this Court were to accept Nike’s contention — something that would likely involve an inappropriate inquiry into the merits (Markham, 171 F.R.D. at 221) — all it would demonstrate is that in the end plaintiffs’ contended-for class size is not 100% accurate. But all that plaintiffs need do at this stage is to present a good faith estimate (Radmanovich, 216 F.R.D. at 431), and they have surely done so here. Nike also challenges commonality, claiming in essence that the purported class members’ claims and experiences are too individualized for commonality to exist (N. Mem.41). For example, Nike observes that different class members were subjected to different forms and intensities of harassment — due in part, Nike supposes, to their having worked different shifts under different supervisors — and that individual class members’ differing circumstances open their claims to a variety of idiosyncratic defenses (N. Mem.36-40). But that is at odds with our Court of Appeals’ teaching — both in general and in the specific context of hostile work environment claims — that individualized factual variations among class members need not destroy commonality (Keele, 149 F.3d at 594) — a teaching of course heeded by District Courts in this Circuit. Here plaintiffs have presented a sufficient showing that despite their varied experiences and circumstances the class members do share at least one common question: whether there existed an overarching and pervasive hostile work environment at Nike Chicago. That being so, plaintiffs have satisfied commonality (Wilfong v. Rent-A-Center, Inc., No. 00 CV 680-DRH, 2001 WL 1795093, at *5 (S.D.Ill.Dec. 27)); Warnell, 189 F.R.D. at 390. Nike takes a similar tack in contesting the typicality of the named plaintiffs, arguing that some of them differ from the class members they purport to represent in terms of both their experience of harassment and the defenses to which their claims are susceptible (N. Mem.37-40). Again, though, Nike has made too much of such differences. Much as in the commonality context, it is simply not “require[d] that each member of a class suffer precisely the same injury" }, { "docid": "21310741", "title": "", "text": "were available for full-time hours, the availability of full-time positions, whether employees sought full-time employment and benefits and which benefits were denied. As with previous subclasses, such differences no doubt exist, but again class members and named plaintiffs alike share the same fundamental claim that they were subjected to racially-biased application of Nike’s benefit policies. And that is enough to satisfy typicality here. Finally and with one exception, the named plaintiffs also adequately represent this subclass. As before, Nike’s now-familiar “conflict” argument — based this time on (1) competition between plaintiffs and class members for the same full-time positions and (2) “conflicts between the hourly employees who were denied full-time hours and benefits, and the African-American managers who were involved in those decisions” (N. Mem.28) — fails to convince this Court that plaintiffs are inadequate representatives. This opinion has already made plain this Court’s view on “conflicts” due to competition, and this time the absence of managers among the subclass’ named plaintiffs adequately addresses Nike’s objection to managers representing hourly employees. That said, however, Nike’s concerns as to named plaintiff Barbee are warranted, at least based on the excerpts provided to this Court. Barbee testified that by her own choice she worked only 24 hours a week (her Dep. 349), below Nike’s minimum requirement for full-time status and its attendant benefits (P.Ex. 2, DEF 098968-69). Hence Barbee can hardly claim that Nike’s denial of full-time benefits was improper, so that— unlike the plaintiffs in the discipline subclass — Barbee’s claim is a “clear loser,” making her an inadequate class representative (Robinson, 167 F.3d at 1157-58). This Court therefore removes Barbee from the list of this subclass’ representatives, but otherwise finds the subclass to have met the Rule 23(a) requirements. Rule 23(b) With Rule 23(a)’s demands having been met, plaintiffs seek to invoke both Rule 23(b)(2) and Rule 23(b)(3) in their bid to overcome the last certification hurdle (P.R. Mem.34-42). Rule 23(b)(2) requires that defendant have “acted or refused to act on grounds generally applicable to the class, thereby making appropriate final injunctive relief or corresponding declaratory relief with respect to" }, { "docid": "21310737", "title": "", "text": "a significant racial disparity in the termination of Nike Chicago employees, showing that during the bulk of the relevant time period over 33% of African-American employees were terminated for rules violations, as contrasted with less than 8% of Caucasian employees (P. Mem.21). Nike protests accurately that the statistics do not account for differing circumstances triggering each termination, suggesting that perhaps African-American employees just committed “dischargeable rules violations” more often than Caucasian employees (N. Mem.49). But once again such an argument, while ultimately relevant, involves exactly the kind of inquiry into the merits that is inappropriate at this stage of the litigation. As was the case for the Promotion subclass, however, plaintiffs’ invocation of the role of “local” managers in effecting disciplinary discrimination limits membership in the Discipline subclass to nonmanagers. What was said in the Promotion section of this opinion on that score applies here with equal force. As for Nike’s challenges to typicality, for the most part they echo its challenges to commonality, and — with one notable exception — similarly fall short. To begin with, the factual differences that likely exist between plaintiffs and class members no more destroy typicality than they destroy commonality. Nor is it the case, as Nike’s memorandum suggests (N. Mem.13-16), that each named plaintiff must have experienced each form of discipline complained of. As this Court has said in Owner-Operator, 231 F.R.D. at 282, a finding of typicality “requires neither complete coextensivity nor even substantial identity of claims.” Despite undoubted variations, on the record before this Court the bulk of the claims of the class representatives share the “same essential characteristics as the claims of the class at large” and “arise[ ] from the same ... course of conduct” (De La Fuente, 713 F.2d at 232): the subjection of African-American employees to a racially-biased application of workplace rules and discipline. One final point as to typicality: What was said as to Barlow in the Promotion section applies here as well and calls for his elimination as a representative for this subclass. In fact, Barlow himself admitted that on more than one occasion he" }, { "docid": "21310725", "title": "", "text": "hostile work environment claims — that individualized factual variations among class members need not destroy commonality (Keele, 149 F.3d at 594) — a teaching of course heeded by District Courts in this Circuit. Here plaintiffs have presented a sufficient showing that despite their varied experiences and circumstances the class members do share at least one common question: whether there existed an overarching and pervasive hostile work environment at Nike Chicago. That being so, plaintiffs have satisfied commonality (Wilfong v. Rent-A-Center, Inc., No. 00 CV 680-DRH, 2001 WL 1795093, at *5 (S.D.Ill.Dec. 27)); Warnell, 189 F.R.D. at 390. Nike takes a similar tack in contesting the typicality of the named plaintiffs, arguing that some of them differ from the class members they purport to represent in terms of both their experience of harassment and the defenses to which their claims are susceptible (N. Mem.37-40). Again, though, Nike has made too much of such differences. Much as in the commonality context, it is simply not “require[d] that each member of a class suffer precisely the same injury as the named class representatives” (De La Fuente, 713 F.2d at 232-33). “[F]actual distinctions between the claims of the named class members and those of other class members” need not block a typicality finding (id.) — instead the question is whether the claims of the former “have the same essential characteristics” as those of the latter (Retired Chicago Police Ass’n, 7 F.3d at 597), looking to “the company’s actions” rather than to any “particularized defenses it might have against certain class members” (Wagner v. NutraSweet Co., 95 F.3d 527, 534 (7th Cir.1996)). Despite that teaching, Nike first argues that many plaintiffs’ experiences are not representative of the class because they “concede that they personally were never subjected to such [racially harassing] practices at all” (N. Mem. 37, emphasis in original). But the portions of the record cited by Nike fail to support such an all-encompassing claim. Rather than demonstrating that such plaintiffs experienced no harassing conduct at all, as Nike suggests, the cited testimony shows only that some plaintiffs did not experience particular kinds of" }, { "docid": "21310736", "title": "", "text": "to negate adequacy of representation. Discipline As for numerosity, plaintiffs have produced a variety of accounts of African-American employees being subjected to disparate application of Nike Chicago work rules and punishments, as well as noting that 72 African-American Nike Chicago employees were terminated for violating store rules. While (as discussed later) plaintiffs’ suggestion (P. Mem.31) that all African-Americans employed by Nike Chicago during the relevant period would be part of the subclass is surely overinclusive, their presentations amply demonstrate that the Discipline subclass would still be large enough to make joinder impracticable. As to commonality, Nike once more argues that individual discipline-based claims would be too particularized (N. Mem.48). Again plaintiffs have produced enough anecdotal and statistical evidence that class members were subjected to the same general discriminatory application of discipline and workplace rules, due to the discretion granted local managers. First plaintiffs have produced a good deal of testimony, from plaintiffs and class members alike, describing discriminatory application of various workplace rules and policies (see P. Mem. 17-21). Plaintiffs have also brought evidence of a significant racial disparity in the termination of Nike Chicago employees, showing that during the bulk of the relevant time period over 33% of African-American employees were terminated for rules violations, as contrasted with less than 8% of Caucasian employees (P. Mem.21). Nike protests accurately that the statistics do not account for differing circumstances triggering each termination, suggesting that perhaps African-American employees just committed “dischargeable rules violations” more often than Caucasian employees (N. Mem.49). But once again such an argument, while ultimately relevant, involves exactly the kind of inquiry into the merits that is inappropriate at this stage of the litigation. As was the case for the Promotion subclass, however, plaintiffs’ invocation of the role of “local” managers in effecting disciplinary discrimination limits membership in the Discipline subclass to nonmanagers. What was said in the Promotion section of this opinion on that score applies here with equal force. As for Nike’s challenges to typicality, for the most part they echo its challenges to commonality, and — with one notable exception — similarly fall short. To" }, { "docid": "21310734", "title": "", "text": "discrimination. While it is of course conceivable that even managers have been similarly subjected to such discrimination (perhaps by managers farther up the ladder but still “local,” such as Store Manager Wigod), plaintiffs have identified no instance of such actions being taken against managers — and if there were any such instances, it would also seem unlikely that they would add up to meet a numerosity test. So for now commonality will extend only to non-managerial African-American employees, and this subclass’ definition is limited accordingly (see Breedlove v. Tele-Trip Co., No. 91 C 5702, 1993 WL 284327, at *8 (N.D.Ill. July 27)). As to typicality, Nike’s challenges echo those it made to commonality, and once more they fall short. Again factual differences in individual claims do not denote a lack of typicality where, as here, the named plaintiffs claim to have been victimized by the same “practice or course of conduct” as their fellow class members (Keele, 149 F.3d at 595): that they were subjected to “diminished promotional opportunities” due to the “discretion and subjective decision making power” wielded by Nike Chicago managers. Of course proposed named plaintiff Barlow, as a manager himself, would likely have a difficult time demonstrating typicality, but the just-ruled exclusion of managers from this subclass in general moots any such concern. Barlow’s absence from the subclass also moots one of Nike’s concerns as to adequate representation. As Nike points out, several class members testified that Barlow was involved in the promotion-related actions and decisions of which they complain (N. Mem.27). While that conflict of interest is far more serious, and has far better evidentiary support, than that earlier addressed in the hostile work environment context, it does not affect the subclass’ satisfaction of this final element. Instead, Barlow’s removal as a putative subclass representative avoids the conflict (see Bell v. Woodward Governor Co., 2005 WL 23340, at *3 (N.D.Ill. Jan. 4)). Nike’s other objection to adequacy revisits its claim that competition between class members and class representatives for the same jobs creates a prohibitive conflict of interest (N. Mem.27). As before such competition is insufficient" }, { "docid": "21310738", "title": "", "text": "begin with, the factual differences that likely exist between plaintiffs and class members no more destroy typicality than they destroy commonality. Nor is it the case, as Nike’s memorandum suggests (N. Mem.13-16), that each named plaintiff must have experienced each form of discipline complained of. As this Court has said in Owner-Operator, 231 F.R.D. at 282, a finding of typicality “requires neither complete coextensivity nor even substantial identity of claims.” Despite undoubted variations, on the record before this Court the bulk of the claims of the class representatives share the “same essential characteristics as the claims of the class at large” and “arise[ ] from the same ... course of conduct” (De La Fuente, 713 F.2d at 232): the subjection of African-American employees to a racially-biased application of workplace rules and discipline. One final point as to typicality: What was said as to Barlow in the Promotion section applies here as well and calls for his elimination as a representative for this subclass. In fact, Barlow himself admitted that on more than one occasion he issued “the very discipline of which the class complains” (N. Mem.28). Barlow’s elimination not only scotches that aspect of Nike’s typicality objection but also one of Nike’s two objections as to adequacy. As to Nike’s other adequacy objection, it argues that the named plaintiffs’ claims are so weak that they would “jeopardize[] the interests” of class members with stronger claims (N. Mem.28). Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1158 (7th Cir.1999)(emphasis in original) has indeed said that one whose “claim is a clear loser” may well be an inadequate class representative. But the claims of the named plaintiffs are clearly not “clear” losers, and short of such clarity the merits of plaintiffs’ claims are again not at issue at this stage of the litigation. Except for Barlow, then, the representatives of this class are both typical and adequate. Benefits Nike’s employment records reflect that during the relevant time period Nike Chicago employed over 130 African-Americans in part-time positions. Once more numerosity is readily satisfied. There is also no need to reinvent the" }, { "docid": "21310739", "title": "", "text": "issued “the very discipline of which the class complains” (N. Mem.28). Barlow’s elimination not only scotches that aspect of Nike’s typicality objection but also one of Nike’s two objections as to adequacy. As to Nike’s other adequacy objection, it argues that the named plaintiffs’ claims are so weak that they would “jeopardize[] the interests” of class members with stronger claims (N. Mem.28). Robinson v. Sheriff of Cook County, 167 F.3d 1155, 1158 (7th Cir.1999)(emphasis in original) has indeed said that one whose “claim is a clear loser” may well be an inadequate class representative. But the claims of the named plaintiffs are clearly not “clear” losers, and short of such clarity the merits of plaintiffs’ claims are again not at issue at this stage of the litigation. Except for Barlow, then, the representatives of this class are both typical and adequate. Benefits Nike’s employment records reflect that during the relevant time period Nike Chicago employed over 130 African-Americans in part-time positions. Once more numerosity is readily satisfied. There is also no need to reinvent the already-constructed wheel of commonality for Benefits subclass purposes. Once more plaintiffs have adduced adequate evidence to support their claim that all class members— despite variations in their circumstances and in their susceptibility to potential defenses— have a common central issue: whether Nike discriminated in applying its benefits guidelines to African-American employees through a decentralized “corporate policy” that left such decisions to the subjective discretion of local managers. Plaintiffs point to the testimony of a number of plaintiffs and class members who assert that they were denied employment benefits to which they were entitled (P. Mem. 22-23; P.R. Mem. 30) , then support the classwide reach of that common question by pointing to the disparity between the raw numbers of Caucasian and African-Americans employed and hired in part-time positions (P.R. Mem.30-31) . Those raw numbers are of course subject to challenge as nondispositive, but that is again a matter to be resolved at trial, not here. Nor is typicality undermined by individualized differences among named plaintiffs and the subclass at large — such as whether employees" }, { "docid": "21310722", "title": "", "text": "In particular, commonality generally exists when the defendant has engaged in “standardized conduct” toward the members of the proposed class (id.). ■ Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Typicality is satisfied by a representative plaintiffs claim that “arises from the same event or practice or course of conduct that gives rise to the claims of other class members and his or her claims are based on the same legal theory” (Keele, 149 F.3d at 595, quoting De La Fuente v. Stokely-Van Camp, Inc., 713 F.2d 225, 232 (7th Cir.1983)). Finally, Rule 23(a)(4) requires prospective class representatives to demonstrate that they will “fairly and adequately protect the interests of the class.” In that respect a named plaintiff (1) must not have claims antagonistic to or in conflict with those of the other class members, (2) must have sufficient interest in the outcome of the litigation to ensure “vigorous advocacy” and (3) must have experienced and competent counsel (Weizeorick v. ABN AMRO Mortgage Group, Inc., No. 01 C 713, 2004 WL 1880008, at *5 (N.D.Ill. Aug. 3)). Hostile Work Environment In establishing numerosity for their hostile work environment class, plaintiffs contend that the class should encompass all African-Americans employed by Nike Chicago between December 17, 1999 and the present — a group of over 230 individuals, according to Nike Chicago’s personnel records (P. Mem.30). While there is no magic number that automatically satisfies numerosity, it is often said that 40 members (Toney v. Rosewood Care Ctr., Inc., No. 98 C 0693, 1999 WL 199249, at *6 (N.D.Ill. Mar. 31)), or even fewer (Markham v. White, 171 F.R.D. 217, 221 (N.D.Ill.1997)), are enough to make up a class. It is beyond cavil that the much larger class size urged by plaintiffs would make joinder impracticable (id.). Nike argues in opposition that plaintiffs’ figure is inflated. As Nike would have it, some plaintiffs have said they were not witness to, or were not subjected to, some or all of the alleged harassing conduct, so that they could have" } ]

[ { "docid": "22054276", "title": "", "text": "his brief to us that he is entitled to relief under the Convention Against Torture. His brief to the BIA, though, argued only credibility, clan identity, and persecution. The government asserts that we lack jurisdiction over this claim because Hassan Aden failed to exhaust the issue before the BIA. Hassan Aden did not include the Convention Against Torture in his Notice of Appeal to the BIA, nor did he argue the issue in his brief before the BIA. However, he stated in the conclusion of his briefing that the IJ erred by “denying his application for asylum, holding him ineligible for withholding of removal, and denying him the protections afforded under the Convention Against Torture.” In Zhang v. Ashcroft, we address similar circumstances in which a petitioner merely “mentioned in his brief to the BIA that he was requesting reversal of the IJ’s denial of relief under the Convention Against Torture,” but failed to brief that topic at any length. We held that this mention was “sufficient to put the BIA on notice that [the petitioner] was challenging the IJ’s Convention determination, and [gave] the agency ... an opportunity to pass on this issue.” Here, as in Zhang, the petitioner mentioned his Convention Against Torture claim in his brief to the BIA. Accordingly, Hassan Aden adequately exhausted his claim before the BIA, and we have jurisdiction to address that claim on appeal. To be eligible for withholding of removal based on the Convention Against Torture, Hassan Aden must prove that he is more likely than not going to be tortured if sent back to Somalia. Torture must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” We cannot say on the record before us that a reasonable adjudicator would be compelled to find, contrary to that of the IJ below, that Hassan Aden established these facts. We thus affirm the denial of relief under the Convention Against Torture. The petition for review is DENIED. . Simeonov v. Ashcroft, 371 F.3d 532, 535 (9th" } ]

[ { "docid": "22342976", "title": "", "text": "men would find out and kill her. Two days later, she reported the incident to the Sa-lama police, who told her they could not investigate the incident because she could not identify her assailants. Fearing for her life, Garcia-Milian left Guatemala for Mexico, and then paid a “coyote” to smuggle her across the border into the United States. In addition to testifying at the proceeding, Garcia-Milian submitted a State Department report on Guatemala titled Country Reports on Human Rights Practices-2006, and four Amnesty International reports. The reports indicate that Guatemalan police had minimal training or capacity for investigating or assisting victims of sexual crimes, and that the Guatemalan government had been ineffective in investigating violence against women and homicides generally, due to weaknesses throughout the criminal justice and law enforcement system. The IJ denied Garcia-Milian’s applications for asylum, withholding of removal, and CAT relief. The BIA affirmed the IJ’s decision. It noted that “[wjhile the respondent appears to have been the victim of criminal acts on the several occasions described, she has not established a nexus between any incident and a protected ground under the Act.” Based on its review of the record, the BIA concluded that there was “no evidence the respondent ever expressed a political opinion and no evidence to suggest that she was harmed based on any real or imputed political opinion.” As a result, the BIA denied Garcia-Milian’s asylum and withholding of removal claims. The BIA also rejected Garcia-Milian’s CAT claim. It held that the record did not establish that “it is more likely than not that the respondent will face torture by or with the acquiescence or willful blindness of an officer of the government of Guatemala.” II We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. Li v. Holder, 656 F.3d 898, 904 (9th Cir.2011). We review the BIA’s denials of asylum, withholding of removal, and CAT relief for “substantial evidence” and will uphold a denial supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir.2010)" }, { "docid": "22432584", "title": "", "text": "has a well-founded fear of severe mistreatment at their hands, then he is eligible for asylum because a causal nexus would necessarily exist between that mistreatment and his membership in a particular social group, as discussed above. IV. WITHHOLDING OF REMOVAL An applicant is entitled to withholding of removal if his “life or freedom would be threatened in that country because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1231(b)(3)(A). The BIA denied withholding of removal based on the Mexican government’s willingness and ability to control Los Zetas and based on the lack of a nexus between any past or future persecution and a protected ground. Because we reject the BIA’s finding on the lack of a causal nexus and remand on the issue of the government’s ability to control Los Zetas, we also grant the petition on this claim and remand to the BIA to reconsider Tapia Madrigal’s application for withholding of removal. V. CONVENTION AGAINST TORTURE An applicant is eligible for CAT relief if he establishes that “it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). Torture is “any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person ... when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 208.18(a)(1). Thus, a CAT applicant must show both a greater than 50 percent likelihood that he will be tortured, see Cole v. Holder, 659 F.3d 762, 770 (9th Cir.2011), and that a public official would inflict, instigate, consent to or acquiesce in that torture, see 8 C.F.R. § 208.18(a)(1). A. LIKELIHOOD OF TORTURE Under CAT’s implementing regulations, the BIA must consider all evidence of country conditions to determine the likelihood that an applicant would be tortured. See 8 C.F.R. § 1208.16(c)(3) (“In assessing whether it is more likely than not that" }, { "docid": "11828249", "title": "", "text": "particularized retribution against him [for] being an informer to the police or a witness to a crime who provided information to prosecute that crime.’ ” (Alteration in original; quoting opinion of the IJ.) The BIA’s determination is supported by the evidence. The record supports the conclusion that Amilcar-Orella-na’s fear of persecution stems from a personal dispute with X and Y, not his membership in a particular social group. Fear of retribution over personal matters is not a basis for asylum under the Immigration and Nationality Act. Sompotan v. Mukasey, 533 F.3d 63, 71 (1st Cir.2008); Romilus v. Ashcroft, 385 F.3d 1, 6 (1st Cir.2004) (“The [Act] is not intended to protect aliens from violence based on personal animosity.”). We deny the petition based on the BIA’s narrower ruling.' We have no need to reach the broader questions regarding the BIA’s use of a social visibility test in its definition of a particular social group. Because Amilcar-Orellana has failed to meet the lower burden required for asylum, he cannot satisfy the more rigorous standard for withholding of removal. See Khan, 541 F.3d at 58. Finally, Amilcar-Orellana contests the BIA’s rejection of his claim for relief under the CAT. To obtain protection under the CAT, an applicant must “establish that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.” 8 C.F.R. § 208.16(c)(2). The torture must be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” Id. § 208.18(a)(1). We review whether an applicant has demonstrated eligibility for relief under the CAT for substantial evidence. See Limani v. Mukasey, 538 F.3d 25, 32 (1st Cir.2008). Amilcar-Orellana argues that the police in El Salvador are “wholly incapable of protecting men like [Amilcar-Orellana] from retribution by gang members” and also “willfully turn a blind eye to, and at times participate in,” gang-related criminal acts. But the IJ found, and the BIA agreed, that the record shows “the government in El Salvador is trying as best it" }, { "docid": "20471046", "title": "", "text": "must demonstrate that his “life or freedom would be threatened in [his home] country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1231(b)(3). The REAL ID Act of 2005 places an additional burden on Zetino to demonstrate that one of the five protected grounds will be at least one central reason for his persecution. See id. § 1158(b)(l)(B)(i). Zetino testified that he was fearful of returning to El Salvador because, in 1993, bandits attempting to steal his grandfather’s farm had murdered his family members. Zetino did not present evidence that the bandits targeted his family on account of a protected ground such as their race, religion, nationality, membership in a particular social group, or political opinions. Rather, he testified that the farm was on fertile land, and thus valuable. Zetino implied that the only motivation for the murders was the land itself. He testified that the attackers “were insisting on the lands and [his] grandfather did not want to get rid of the land.” Zetino also testified that he was afraid of gang violence because he had tattoos that gang members might mistake as a sign of membership in a rival gang. An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground. See id. §§ 1231(b)(3), 1101(a)(42); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004) (holding that random criminal acts bore no nexus to a protected ground). Accordingly, the BIA properly ruled that Zetino did not meet his burden of proving that the potential harm he would suffer in El Salvador was “on account of’ a protected ground such as “race, religion, nationality, membership in a particular social group, or political opinion.” Gormley, 364 F.3d at 1176. Because the BIA’s determination is supported by reasonable, substantial, and probative evidence in the record considered as a whole, the petition for review is denied. IV We do not have jurisdiction to review the BIA’s denial of Zetino’s untimely brief for an abuse of discretion. As" }, { "docid": "20471029", "title": "", "text": "We find that the BIA’s denial of the brief in this instance did not violate Zetino’s due process rights. Second, Zetino claims the IJ violated his due process rights by failing to develop a factually complete record or advise him of his right to counsel. This argument is without merit and is unsupported by the record. Third, Zetino claims substantial evidence does not support the BIA’s decision that he failed to demonstrate a nexus between the harm he allegedly faces upon return to El Salvador and a protected ground such as race, religion, nationality, membership in a particular social group, or political opinion. Zetino fears return to El Salvador because in 1993 unidentified masked gunmen murdered members of his family motivated by a desire to steal his grandfather’s land. Neither that event nor his fear of gangs bears a nexus to a protected ground. Accordingly, we deny the petition for review in part and dismiss in part for want of jurisdiction. II “[W]e have jurisdiction to determine our own jurisdiction.” Sareang Ye v. INS, 214 F.3d 1128, 1131 (9th Cir.2000). We review questions of our own jurisdiction de novo. Miller v. Comm’r, 310 F.3d 640, 642 (9th Cir.2002). Due process challenges to immigration proceedings are also reviewed de novo. Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir.2003). We review petitions for review of the BIA’s determination that a petitioner does not qualify for asylum or withholding of removal under the highly deferential “substantial evidence” standard. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this standard, the petition for review must be denied if the BIA’s determination is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. The petition for review may be granted only if the evidence presented “was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Id. (citing NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939)). Ill Because Zetino filed his application for asylum after the May" }, { "docid": "22601883", "title": "", "text": "of harm resulting from general conditions of violence and civil unrest affecting the home country’s populace as a whole does not constitute a “well-founded fear of persecution” within the meaning of the Act. Furthermore, the BIA reasoned that Zetino’s fear of harm by criminals or gangs did not “establish that he belongs to a ‘particular social group’ within the meaning of section 101(a)(42)(A) of the Act.” The BIA relied on our decision in Arteaga v. Mukasey, 511 F.3d 940 (9th Cir.2007), where we held that a tattooed alien’s membership in a violent criminal gang was not “social group” membership for withholding of removal purposes. Zetino now timely petitions for review of the BIA’s decision to reject his untimely brief as well as its decision to uphold the IJ’s ruling denying his applications for asylum and withholding of removal. He presents three distinct challenges, two procedural and one substantive. First, Zetino claims the BIA’s discretionary ruling refusing to accept his untimely brief or to extend the filing period was a violation of his due process rights and an abuse of discretion. We find that the BIA’s denial of the brief in this instance neither violated Zetino’s due process rights nor constituted an abuse of discretion. Second, Zetino claims the IJ violated his due process rights by failing to develop a factually complete record or advise him of his right to counsel. This argument is without merit and is unsupported by the record. Third, Zetino claims substantial evidence does not support the BIA’s decision that he failed to demonstrate a nexus between the harm he allegedly faces upon return to El Salvador and a protected ground such as race, religion, nationality, membership in a particular social group, or political opinion. Zetino fears return to El Salvador because in 1993 unidentified masked gunmen murdered members of his family motivated by a desire to steal his grandfather’s land. Neither that event nor his fear of gangs bears a nexus to a protected ground. Accordingly, we deny the petition for review. II Due process challenges to immigration proceedings are reviewed de novo. Padilla v. Ashcroft," }, { "docid": "6463045", "title": "", "text": "royal family even though he did not expose the corruption to the public). Petitioner suffered severe retaliation for refusing to comply with Mr. Moreno’s criminal demands, including being arrested eight times by the police and tortured during his detentions, which constitutes past persecution. See Guo v. Ashcroft, 361 F.3d 1194, 1197, 1203 (9th Cir. 2004) (holding that two arrests and repeated beatings constituted persecution). Thus, petitioner has demonstrated nexus on account of political activity for asylum and withholding of removal. The BIA denied petitioner asylum and withholding of removal because he failed to establish a nexus to political activity, which is erroneous. We therefore grant the petition for review and remand to the BIA for consideration of whether the government has met its burden to rebut the presumption that petitioner has a well-founded fear of future persecution on the basis of his whistleblowing activities. See INS v. Ventura, 537 U.S. 12, 16-18, 123 S.Ct. 353, 154 L.Ed.2d 272 (2002) (remanding to the BIA to determine in the first instance whether the government has met its burden to rebut this presumption). C. CAT Relief Petitioner argues that the BIA erred in holding that he did not establish CAT relief. To establish CAT relief, petitioner must show it is more likely than not that he will be tortured by a public official or with the consent or acquiescence of such an official if returned to his country of origin. See Wakkary v. Holder, 558 F.3d 1049, 1067-68 (9th Cir.2009). “In assessing whether it is more likely than not that an applicant would be tortured ... all evidence relevant to the possibility of future torture shall be considered, including, but not limited to: [evidence of past torture, ...; [e]vidence that the applicant could relocate ...; [ejvidence of gross, flagrant or mass violations of human rights within the country of removal; and other relevant information regarding conditions in the country of removal.” Kamalthas v. INS, 251 F.3d 1279, 1282 (9th Cir.2001) (quoting 8 C.F.R. § 208.16(c)(2), (3)) (first emphasis and first ellipsis in the original) (second emphasis omitted). As we have previously acknowledged, “it" }, { "docid": "20471047", "title": "", "text": "testified that he was afraid of gang violence because he had tattoos that gang members might mistake as a sign of membership in a rival gang. An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground. See id. §§ 1231(b)(3), 1101(a)(42); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir. 2004) (holding that random criminal acts bore no nexus to a protected ground). Accordingly, the BIA properly ruled that Zetino did not meet his burden of proving that the potential harm he would suffer in El Salvador was “on account of’ a protected ground such as “race, religion, nationality, membership in a particular social group, or political opinion.” Gormley, 364 F.3d at 1176. Because the BIA’s determination is supported by reasonable, substantial, and probative evidence in the record considered as a whole, the petition for review is denied. IV We do not have jurisdiction to review the BIA’s denial of Zetino’s untimely brief for an abuse of discretion. As a result, this part of the petition is dismissed. Zetino’s due process rights were not violated and substantial evidence supports the BIA’s decision that Zetino did not demonstrate a nexus between the harm he fears and a protected ground. This part of the petition for review is denied. PETITION DISMISSED IN PART, DENIED IN PART. . In his petition for review, Zetino does not challenge the IJ's denial of his application for protection under the United Nations Convention Against Torture. Accordingly, he has waived any challenge to that determination. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260(9th Cir.1996). . We construe Zetino’s motion, filed two weeks after the filing deadline, as solely a motion to accept an untimely brief. An extension of the filing period was factually impossible because the filing period had already lapsed. In its order, the BIA noted its stated policy that a \"request for an extension of time to file a brief must be received at the Board on or before [the] ... due date.” A motion to extend the filing" }, { "docid": "19551799", "title": "", "text": "standard, the IJ explained, a petitioner must show that a statutorily protected ground would be \"at least one central reason\" for the feared persecution. J.A. 123 (quoting 8 U.S.C. § 1158(b)(1)(B)(i) ). And here, the IJ concluded, \"the central reasons for [Salgado-Sosa's] past persecution and feared persecution are that [his step]father refused to pay extortion and as revenge on the family for fighting back against the gang.\" J.A. 127. Neither of those gang motivations implicates a protected ground under the INA, the IJ reasoned, and it follows that Salgado-Sosa cannot establish the necessary nexus between the threatened harm and membership in his family. Finally, the IJ denied relief under the CAT, which requires a petitioner to show that, if removed, it is \"more likely than not that he or she would be tortured\" with the consent or acquiescence of the government. 8 C.F.R. §§ 1208.16(c)(2), 1208.18(a)(1) ; see Turkson v. Holder , 667 F.3d 523, 526 (4th Cir. 2012). Acknowledging \"serious concerns about gang violence and other criminal activity in Honduras,\" the IJ nevertheless concluded that \"on the basis of this particular record,\" Salgado-Sosa could not show a sufficient likelihood of torture with the consent or acquiescence of the Honduran government. J.A. 127. A one-member panel of the Board of Immigration Appeals (\"BIA\" or \"Board\") dismissed Salgado-Sosa's appeal and affirmed the IJ's findings. The BIA agreed with the IJ that Salgado-Sosa failed to qualify for the changed circumstances exception based on the argument he had presented to the IJ. The Board noted that Salgado-Sosa was raising for the first time on appeal an additional argument: that our 2011 decision in Crespin-Valladares , recognizing family as a protected social group under the INA, itself constitutes a \"changed circumstance\" allowing consideration of a late-filed asylum application. But because that argument had not been presented to the IJ, it was not properly before the Board, and the Board declined to address it. The BIA then affirmed the IJ's denial of withholding of removal, agreeing that Salgado-Sosa had failed to establish a sufficient nexus between the threatened harm and membership in his family. Echoing" }, { "docid": "20471028", "title": "", "text": "our decision in Arteaga v. Mukasey, 511 F.3d 940 (9th Cir.2007), where we held that a tattooed alien’s membership in a violent criminal gang was not “social group” membership for withholding of removal purposes. Zetino now timely petitions for review of the BIA’s decision to reject his untimely brief as well as its decision to uphold the IJ’s ruling denying his applications for asylum and withholding of removal. He presents three distinct challenges, two procedural and one substantive. First, Zetino claims the BIA’s discretionary ruling refusing to accept his untimely brief or to extend the filing period was a violation of his due process rights and an abuse of discretion. The government argues that we do not have jurisdiction over the abuse of discretion challenge to the denial of the motion to accept a late brief because there is no meaningful standard against which to judge the discretionary ruling. We agree. However, we do have jurisdiction to review the BIA’s denial of a motion to accept an untimely brief for a violation of due process. We find that the BIA’s denial of the brief in this instance did not violate Zetino’s due process rights. Second, Zetino claims the IJ violated his due process rights by failing to develop a factually complete record or advise him of his right to counsel. This argument is without merit and is unsupported by the record. Third, Zetino claims substantial evidence does not support the BIA’s decision that he failed to demonstrate a nexus between the harm he allegedly faces upon return to El Salvador and a protected ground such as race, religion, nationality, membership in a particular social group, or political opinion. Zetino fears return to El Salvador because in 1993 unidentified masked gunmen murdered members of his family motivated by a desire to steal his grandfather’s land. Neither that event nor his fear of gangs bears a nexus to a protected ground. Accordingly, we deny the petition for review in part and dismiss in part for want of jurisdiction. II “[W]e have jurisdiction to determine our own jurisdiction.” Sareang Ye v. INS, 214" }, { "docid": "22601884", "title": "", "text": "and an abuse of discretion. We find that the BIA’s denial of the brief in this instance neither violated Zetino’s due process rights nor constituted an abuse of discretion. Second, Zetino claims the IJ violated his due process rights by failing to develop a factually complete record or advise him of his right to counsel. This argument is without merit and is unsupported by the record. Third, Zetino claims substantial evidence does not support the BIA’s decision that he failed to demonstrate a nexus between the harm he allegedly faces upon return to El Salvador and a protected ground such as race, religion, nationality, membership in a particular social group, or political opinion. Zetino fears return to El Salvador because in 1993 unidentified masked gunmen murdered members of his family motivated by a desire to steal his grandfather’s land. Neither that event nor his fear of gangs bears a nexus to a protected ground. Accordingly, we deny the petition for review. II Due process challenges to immigration proceedings are reviewed de novo. Padilla v. Ashcroft, 334 F.3d 921, 923 (9th Cir.2003). We review petitions for review of the BIA’s determination that a petitioner does not qualify for asylum or withholding of removal under the highly deferential “substantial evidence” standard. INS v. Elias-Zacarias, 502 U.S. 478, 481, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). Under this standard, the petition for review must be denied if the BIA’s determination is “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Id. The petition for review may be granted only if the evidence presented “was such that a reasonable factfinder would have to conclude that the requisite fear of persecution existed.” Id. (citing NLRB v. Columbian Enameling & Stamping Co., 306 U.S. 292, 300, 59 S.Ct. 501, 83 L.Ed. 660 (1939)). Ill Because Zetino filed his application for asylum after the May 11, 2005, effective date of the REAL ID Act of 2005, we have jurisdiction under Section 242 of the INA, 8 U.S.C. § 1252, as amended by the Act, Pub.L. No. 109-13, Div. B., 119 Stat. 231" }, { "docid": "22313008", "title": "", "text": "owners in Ochoa, and the young men who refused to join gangs in Santos-Lemus, a “government informant,” as Petitioner defines it, is not a “cohesive, homogeneous” group. Sanchez-Trujillo, 801 F.2d at 1577. A person who identifies as a “government informant” can be anyone of any demographic description who passes information to government authorities for any purpose. There is no “innate characteristic which is so fundamental to the identities or consciences” of government informants that identifies them as a particular social group. Arteaga, 511 F.3d at 944. The purported group, therefore, “naturally manifest[s] a plethora of different lifestyles, varying interests, diverse cultures, and contrary political leanings.” Sanchez-Trujillo, 801 F.2d at 1577. Accordingly, we hold that “government informants” do not comprise a particular social group within the meaning of 8 U.S.C. § 1101(a)(42)(A). We therefore deny Petitioner’s applications for asylum and withholding of removal. With regard to Petitioner’s CAT claim, Petitioner must establish that it is more likely than not that he would be tortured if returned to the proposed country of removal. 8 C.F.R. § 208.16(c)(2). There is no evidence showing a likelihood of torture by gang members if Petitioner were to return to the Philippines. Importantly, Petitioner did not present’ any evidence demonstrating that he would be subject to torture committed by or with the consent of Filipino government officials. Therefore, substantial evidence supports the denial of CAT relief. Petition DENIED. . We review the BIA's legal conclusions de novo. Azanor v. Ashcroft, 364 F.3d 1013, 1018 (9th Cir.2004). When, as here, the BIA’s decision is an unpublished decision by one member of the BIA, we give Skidmore deference to the BIA’s \"interpretation of the governing statutes and regulations,” recognizing that, “ ‘while not controlling upon the courts by reason of their authority, [these interpretations] do constitute a body of experience.' ” Garcia-Quintero v. Gonzales, 455 F.3d 1006, 1011, 1014 (9th Cir.2006) (alteration in original) (quoting Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S.Ct. 161, 89 L.Ed. 124 (1944)). See discussion infra p. -. \"Factual findings made by the BIA are reviewed under the deferential substantial evidence" }, { "docid": "22601899", "title": "", "text": "See id. §§ 1231(b)(3), 1101(a)(42); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir.2004) (holding that random criminal acts bore no nexus to a protected ground). Accordingly, the BIA properly ruled that Zetino did not meet his burden of proving that the potential harm he would suffer in El Salvador was “on account of’ a protected ground such as “race, religion, nationality, membership in a particular social group, or political opinion.” Gormley, 364 F.3d at 1176. Because the BIA’s determination is supported by reasonable, substantial, and probative evidence in the record considered as a whole, the petition for review is denied. IV There was no abuse of discretion, Zetino’s due process rights were not violated, and substantial evidence supports the BIA’s decision that Zetino did not demonstrate a nexus between the harm he fears and a protected ground. The petition for review is denied. PETITION DENIED. . In his petition for review, Zetino does not challenge the IJ’s denial of his application for protection under the United Nations Convention Against Torture. Accordingly, he has waived any challenge to that determination. See Martinez-Serrano v. INS, 94 F.3d 1256, 1260 (9th Cir.1996). . The government argues we lack jurisdiction to review this discretionary decision. We find this argument unpersuasive in light of Kucana v. Holder, -U.S. -, 130 S.Ct. 827, 831, -L.Ed.2d-(2010)." }, { "docid": "22143471", "title": "", "text": "them.” See Elias-Zacarias, 502 U.S. at 482-83, 112 S.Ct. 812 (“Thus, the mere existence of a generalized ‘political’ motive underlying the guerrillas’ forced recruitment is inadequate to establish ... the proposition that [the applicant] fears persecution on account of political opinion, as [§ 1101(a)(42) ] requires.”). We find substantial evidence supports the BIA’s determination that Zacarias-Velas-quez did not suffer past persecution and does not have a well-founded fear of future persecution in Guatemala. The Attorney General has discretion to grant an alien withholding of removal to a particular country if the alien “shows a clear probability of persecution on account of a protected ground.” Abdelwase v. Gonzales, 496 F.3d 904, 906-07 (8th Cir.2007); see 8 U.S.C. § 1231(b)(3)(A). “The burden of proof for withholding of removal is higher than that required for asylum.” Aziz v. Gonzales, 478 F.3d 854, 858 (8th Cir.2007). Because Zacarias-Velasquez failed to satisfy the requirements for asylum, he “necessarily fail[ed] to meet the standard for withholding of removal.” See Setiadi, 437 F.3d at 714. To qualify for protection under the CAT, an alien must prove “ ‘that it is more likely than not that he or she would be tortured if removed to the proposed country of removal.’ ” Mouawad, 485 F.3d at 413 (quoting 8 C.F.R. § 1208.16(c)(2)). The alien also must prove that the torture would be “inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity” against Zacarias-Velasquez. 8 C.F.R. § 1208.18(a)(1). Zacarias-Velasquez failed to allege that the Guatemalan government has or would likely torture him in the future. Thus, the BIA properly denied relief. The BIA denied Zacarias-Velas-quez cancellation of removal because he failed to prove that his removal would cause an “exceptional and extremely unusual hardship” to his American-citizen daughter, Haydy. See 8 U.S.C. § 1229b(b)(1)(D). We lack jurisdiction to review this finding because it “is precisely the discretionary determination that Congress shielded from our review.” Meraz-Reyes v. Gonzales, 436 F.3d 842, 843 (8th Cir.2006) (per curiam); see 8 U.S.C. § 1252(a)(2)(B)(i) (“Notwithstanding any other provision" }, { "docid": "2513955", "title": "", "text": "is the reason for that individual’s persecution.” Gathungu v. Holder, 725 F.3d 900, 908 (8th Cir.2013). While identifying Arturo for the police may have contributed to MS-13’s disdain for Somoza, MS-13 was already targeting Somoza for his refusal to relinquish half of his salary or to join its ranks. In addition, the visibility requirement tests “ “whether the members of the group are perceived as a group by society,’ such that ‘these individuals suffer from a higher incidence of crime than the rest of the population.’” Gaitan v. Holder, 671 F.3d 678, 680 (8th Cir.2012) (quoting Matter of S-E-G, 24 I. & N. Dec. 579, 586-87 (BIA 2008)). Somoza has not presented any evidence indicating that persons who identify gang members to police suffer greater crime than other members of the population who resist gang violence. Therefore, his attempt to define a cognizable social group on this basis fails for lack of both particularity and visibility. Somoza’s proffered political status also fails under prior precedent of this court. See Marroquin-Ochoma v. Holder, 574 F.3d 574, 578-79 (8th Cir.2009) (holding that opposition to a gang “does not compel a finding that the gang’s threats were on account of an imputed political opinion”). Moreover, nothing in the record suggests that MS-13 targeted Somoza for political reasons. Rather, the gang attacked him for resisting its extortionate demands. Accordingly, the BIA’s legal determinations were correct, and substantial evidence supports its decision to deny withholding of removal under § 1231(b)(3)(A). Unlike § 1231, the CAT does not require Somoza to show he belongs to a protected group. Id. at 579. “Rather, to qualify for CAT relief, [Somoza] must demonstrate that it is more likely than not that [he] will be tortured if removed to Guatemala.” Id. (citing 8 C.F.R. § 1208.16(c)(2)). The torture must be “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” 8 C.F.R. § 1208.18(a)(1). Because Somoza does not contend that his predicted torture would be by or at the instigation of or with the consent of" }, { "docid": "22601897", "title": "", "text": "if the BIA’s determination was “supported by reasonable, substantial, and probative evidence on the record considered as a whole.” Elias-Zacarias, 502 U.S. at 481, 112 S.Ct. 812. Zetino bears the burden of proving that he is eligible for asylum or withholding of removal. See 8 C.F.R. §§ 1208.13, 1208.16; Berroteran-Melendez v. INS, 955 F.2d 1251, 1255-56 (9th Cir.1992). To be eligible for asylum, Zetino must demonstrate that he can qualify as a “refugee,” meaning he is unable or unwilling to return to his country of origin “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42). To be eligible for withholding of removal, Zetino must demonstrate that his “life or freedom would be threatened in [his home] country because of [his] race, religion, nationality, membership in a particular social group, or political opinion.” Id. § 1231(b)(3). The REAL ID Act of 2005 places an additional burden on Zetino to demonstrate that one of the five protected grounds will be at least one central reason for his persecution. See id. § 1158(b)(1)(B)(i). Zetino testified that he was fearful of returning to El Salvador because, in 1993, bandits attempting to steal his grandfather’s farm had murdered his family members. Zetino did not present evidence that the bandits targeted his family on account of a protected ground such as their race, religion, nationality, membership in a particular social group, or politi cal opinions. Rather, he testified that the farm was on fertile land, and thus valuable. Zetino implied that the only motivation for the murders was the land itself. He testified that the attackers “were insisting on the lands and [his] grandfather did not want to get rid of the land.” Zetino also testified that he was afraid of gang violence because he. had tattoos that gang members might mistake as a sign of membership in a rival gang. An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground." }, { "docid": "2210112", "title": "", "text": "this crime. But these circumstances do not subject the victims of human trafficking to “persecution” under the INA. Because the facts do not establish a nexus between the petitioner’s fear of harm and the government of Lithuania, substantial evidence supports the BIA’s conclusion that petitioner failed to establish the well-founded fear of persecution required for asylum. As this is an independent ground to reject her petition, we do not reach the question of whether she established “membership in a particular social group” to qualify as a refugee under the INA. We therefore reject the petition for review of the asylum claim. Consequently, we also reject the petition to review the claim for withholding of removal, which has a more demanding standard of proof and obligates a petitioner to show a “clear probability of persecution” if returned to her home country. I.N.S. v. Stevic, 467 U.S. 407, 413, 104 S.Ct. 2489, 81 L.Ed.2d 321 (1984). We likewise dismiss the petition for review of the CAT claim. See Santosa, 528 F.3d, 88, 92 n. 1 (1st Cir.2008) (“The standard for withholding of removal is more stringent than that for asylum. The CAT standard, in turn, is more stringent than that for withholding of removal.” (citations omitted)). Protection under the CAT requires an alien to show “that it is more likely than not that he or she would be tortured,” 8 C.F.R. § 208.16(c)(2), “by or at the instigation of or with the consent or acquiescence of a public official,” id. § 208.18(a)(1). As we have stated, there is no evidence of government consent or acquiescence in the human trafficking problem in Lithuania. The petition for review is denied. . Petitioner only checked the box requesting the family member \"be included in this application” for Agniete, and not for Arvydas. See 8 U.S.C. § 1158(b)(3)(A) (“A spouse or child ... of an alien who is granted asylum under this subsection may, if not otherwise eligible for asylum under this section, be granted the same status as the alien if accompanying, or following to join, such alien.”). The IJ and BIA appear to have" }, { "docid": "22601898", "title": "", "text": "will be at least one central reason for his persecution. See id. § 1158(b)(1)(B)(i). Zetino testified that he was fearful of returning to El Salvador because, in 1993, bandits attempting to steal his grandfather’s farm had murdered his family members. Zetino did not present evidence that the bandits targeted his family on account of a protected ground such as their race, religion, nationality, membership in a particular social group, or politi cal opinions. Rather, he testified that the farm was on fertile land, and thus valuable. Zetino implied that the only motivation for the murders was the land itself. He testified that the attackers “were insisting on the lands and [his] grandfather did not want to get rid of the land.” Zetino also testified that he was afraid of gang violence because he. had tattoos that gang members might mistake as a sign of membership in a rival gang. An alien’s desire to be free from harassment by criminals motivated by theft or random violence by gang members bears no nexus to a protected ground. See id. §§ 1231(b)(3), 1101(a)(42); Gormley v. Ashcroft, 364 F.3d 1172, 1177 (9th Cir.2004) (holding that random criminal acts bore no nexus to a protected ground). Accordingly, the BIA properly ruled that Zetino did not meet his burden of proving that the potential harm he would suffer in El Salvador was “on account of’ a protected ground such as “race, religion, nationality, membership in a particular social group, or political opinion.” Gormley, 364 F.3d at 1176. Because the BIA’s determination is supported by reasonable, substantial, and probative evidence in the record considered as a whole, the petition for review is denied. IV There was no abuse of discretion, Zetino’s due process rights were not violated, and substantial evidence supports the BIA’s decision that Zetino did not demonstrate a nexus between the harm he fears and a protected ground. The petition for review is denied. PETITION DENIED. . In his petition for review, Zetino does not challenge the IJ’s denial of his application for protection under the United Nations Convention Against Torture. Accordingly, he has waived" }, { "docid": "23330925", "title": "", "text": "did not concede removability. Baghdasaryan submitted an application for asylum and withholding of removal based on political opinion. He also requested relief under CAT. After the merits hearing, the IJ issued an oral decision finding Baghdasaryan not credible and alternatively held that he had not established a nexus to a protected ground. The IJ denied all forms of relief. Baghdasaryan appealed to the BIA. The BIA reversed the IJ’s adverse credibility determination, but nevertheless dismissed the appeal for failure to establish a nexus to a protected ground. The BIA found “very little indication” that the Armenian government was imputing any political opinion to Baghdasaryan and that Baghdasaryan was merely the “victim [of] criminal misconduct.” The BIA also affirmed the IJ’s denial of relief under CAT. Baghdasaryan timely appealed. STANDARD OF REVIEW Because the BIA conducted a de novo review of the IJ’s decision, our review is “limited to the BIA’s decision except to the extent that the IJ’s opinion is expressly adopted [by the BIA].” Hosseini v. Gonzales, 471 F.3d 953, 957 (9th Cir.2006). We typically review the BIA’s asylum and withholding of removal determinations under the substantial evidence standard. See Sinha v. Holder, 564 F.3d 1015, 1020 (9th Cir.2009). Under the substantial evidence standard, the BIA’s determinations will be upheld “if the decision is ‘supported by reasonable, substantial, and probative evidence on the record considered as a whole.’ ” Zhao v. Mukasey, 540 F.3d 1027, 1029 (9th Cir.2008) (quoting Abebe v. Gonzales, 432 F.3d 1037, 1039-40 (9th Cir.2005) (en banc)). Reversal, however, is appropriate when “the evidence in the record compels a reasonable factfinder to conclude that the [BIA’s] decision is incorrect.” Id. DISCUSSION I. THE BIA’S CONCLUSION THAT BAGHDASARYAN WAS INELIGIBLE FOR ASYLUM IS NOT SUPPORTED BY SUBSTANTIAL EVIDENCE To be statutorily eligible for asylum, Baghdasaryan must show that he is a refugee. 8 U.S.C. § 1158(b)(1). A refugee is one who is “unable or unwilling to avail himself or herself of the protection of [his or her native] country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a" }, { "docid": "22342977", "title": "", "text": "nexus between any incident and a protected ground under the Act.” Based on its review of the record, the BIA concluded that there was “no evidence the respondent ever expressed a political opinion and no evidence to suggest that she was harmed based on any real or imputed political opinion.” As a result, the BIA denied Garcia-Milian’s asylum and withholding of removal claims. The BIA also rejected Garcia-Milian’s CAT claim. It held that the record did not establish that “it is more likely than not that the respondent will face torture by or with the acquiescence or willful blindness of an officer of the government of Guatemala.” II We have jurisdiction under 8 U.S.C. § 1252 to review final orders of removal. Li v. Holder, 656 F.3d 898, 904 (9th Cir.2011). We review the BIA’s denials of asylum, withholding of removal, and CAT relief for “substantial evidence” and will uphold a denial supported by “reasonable, substantial, and probative evidence on the record considered as a whole.” Kamalyan v. Holder, 620 F.3d 1054, 1057 (9th Cir.2010) (internal quotation marks omitted) (asylum); Pagayon v. Holder, 675 F.3d 1182, 1190 (9th Cir.2011) (internal quotation marks omitted) (withholding of removal); see Haile v. Holder, 658 F.3d 1122, 1130-31 (9th Cir.2011) (CAT relief). In order to reverse the BIA, we must determine “that the evidence not only supports [a contrary] conclusion, but compels it — and also compels the further conclusion” that the petitioner meets the requisite standard for obtaining relief. INS v. Elias-Zacarias, 502 U.S. 478, 481 n. 1, 112 S.Ct. 812, 117 L.Ed.2d 38 (1992). The agency’s “[findings of fact are conclusive unless ‘any reasonable adjudicator’ would be compelled to conclude to the contrary.” Kamalyan, 620 F.3d at 1057 (quoting 8 U.S.C. § 1252(b)(4)(B)). A We begin by considering Garcia-Milian’s challenge to the BIA’s denial of her asylum application. Applicants for asylum bear the burden of proving eligibility for asylum. 8 C.F.R. § 208.13(a). In order to carry this burden, an applicant must first establish “refugee” status, 8 U.S.C. § 1158(b)(1) (2000), by proving past persecution or well-founded fear of future persecution “on" } ]

[ { "docid": "23024885", "title": "", "text": "essentially factual arguments to justify the restrictions on cable franchising imposed by its ordinance, but the factual assertions of the City are disputed at least in part by respondent. We are unwilling to decide the legal questions posed by the parties without a more thoroughly developed record of proceedings in which the parties have an opportunity to prove those disputed factual assertions upon which they rely. We do think that the activities in which respondent allegedly seeks to engage plainly implicate First Amendment interests. Respondent alleges: “The business of cable television, like that of newspapers and magazines, is to provide its subscribers with a mixture of news, information and entertainment. As do newspapers, cable television companies use a portion of their available space to reprint (or retransmit) the communications of others, while at the same time providing some original content.” App. 3a. Thus, through original programming or by exercising editorial discretion over which stations or programs to include in its repertoire, respondent seeks to communicate messages on a wide variety of topics and in a wide variety of formats. We recently noted that cable operators exercise “a significant amount of editorial discretion regarding what their programming will include.” FCC v. Midwest Video Corp., 440 U. S. 689, 707 (1979). Cable television partakes of some of the aspects of speech and the communication of ideas as do the traditional enterprises of newspaper and book publishers, public speakers, and pamphleteers. Respondent’s proposed activities would seem to implicate First Amendment interests as do the activities of wireless broadcasters, which were found to fall within the ambit of the First Amendment in Red Lion Broadcasting Co. v. FCC, supra, at 386, even though the free speech aspects of the wireless broadcasters’ claim were found to be outweighed by the Government interests in regulating by reason of the scarcity of available frequencies. Of course, the conclusion that respondent’s factual allegations implicate protected speech does not end the inquiry. “Even protected speech is not equally permissible in all places and at all times.” Cornelius v. NAACP Legal Defense & Educational Fund, Inc., 473 U. S. 788," } ]

[ { "docid": "2775826", "title": "", "text": "FCC, 399 F.2d 65, 69 (8th Cir.1968); Buckeye Cablevision, Inc. v. FCC, 387 F.2d 220 (D.C.Cir.1967); Carter Mountain Transmission Corp. v. FCC, 321 F.2d 359 (D.C.Cir.), cert. denied, 375 U.S. 951, 84 S.Ct. 442, 11 L.Ed.2d 312 (1963). These decisions took one of two paths to dispose of the cable operators’ First Amendment contentions, often in a single brief paragraph. The most common approach was simply to treat cable and broadcast television as indistinguishable for purposes of First Amendment analysis. Because it was well established that broadcast media could be subject to regulation far more intrusive than the First Amendment would tolerate in other contexts, it naturally followed for these courts that cable regulation, a variant on the same theme, should be subject to no more exacting scrutiny. See, e.g., Black Hills Video Corp. v. FCC, supra, 399 F.2d at 69 (“[i]t is irrelevant * * * that [cable] systems do not themselves use the airwaves”). Other courts undertook a somewhat more discriminating analysis. They upheld the regulations only after concluding that the restraint on speech was no greater than was reasonably required to serve the important interest of preserving local broadcasting. Buckeye Cablevision, Inc. v. FCC, supra, 387 F.2d at 225. In recent years the lower federal courts have subjected FCC regulation of cable television to a far more rigorous constitutional analysis. It is now clearly established, for example, that cable operators engage in conduct protected by the First Amendment. See, e.g., Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1336 (D.C.Cir.1985); Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396 (9th Cir.1985); Midwest Video Corp. v. FCC, 571 F.2d 1025, 1052-1057 (8th Cir.1978), aff'd on other grounds, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). Most of these courts, mindful of the Supreme Court’s repeated admonitions to be sensitive to the unique features of each medium of expression, have cautioned against reflexive invocation of the more forgiving First Amendment standards applicable to broadcast regulations. See, e.g., Preferred Communications, Inc. v. City of Los Angeles, supra, 754 F.2d at 1403; Home Box" }, { "docid": "2085611", "title": "", "text": "than of other media [such as newspapers] * * * because of the inescapable physical limitations on the number of voices that can simultaneously be carried over the electromagnetic spectrum.” Quincy Cable T.V., Inc. v. F.C.C., 768 F.2d 1434, 1448 (D.C.Cir.1985), citing, e.g., FCC v. League of Women Voters of California, 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984). Thus, the question is whether cable television should be analyzed under the standards applicable to newspapers or those applicable to broadcasters. TCI contends that cable television is entitled to “coextensive protection” with the press media. In its recent decision in Los Angeles v. Preferred Communications, Inc., — U.S. -, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986), the Court suggested that the cable medium may be distinguishable from the newspaper medium and that more government regulation of the cable medium may be permissible because cable requires use of public ways and installation of cable systems may disrupt public order. There, a cable television company sued the City of Los Angeles and its cable franchising department, alleging that the City violated its first amendment rights by refusing to grant it a cable television franchise or to allow it access to cable facilities on the ground that it had failed to participate in an auction for a de facto exclusive franchise in the area. The district court dismissed the complaint for failure to state a claim. The United States Court of Appeals for the Ninth Circuit then reversed and remanded for further findings on whether the City’s exclusive franchising scheme violated the first amendment where there was economic and physical capacity for more than one franchise. It stressed that the City’s only defense was that allowing more than one cable operator would overly burden and disrupt public property and order. The Supreme Court affirmed, “on a narrower ground than the one taken by [the Ninth Circuit],” 106 S.Ct. at 2036, and refused, without development of a more detailed factual record, to set forth the legal standard for assessing first amendment challenges to cable-franchising schemes. The Court simply held that, given that the" }, { "docid": "3719783", "title": "", "text": "of City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986), where the Court noted that the selection and organization of programs on cable television does involve some degree of editorial discretion. Id. 106 S.Ct. at 2037. See Brief for Joint Petitioners at 10-21. The FCC counters by characterizing the must-carry rules as a commercial regulation that burdens speech in a far more attenuated fashion. Accordingly, the FCC argues, the must-carry rules are more appropriately analyzed under the standards set forth in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), where the Supreme Court stated that to be valid, a regulation incidentally burdening speech and not aimed at the suppression of free expression must advance a substantial governmental interest and must be no more restrictive than necessary to accomplish that end. O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679. See Brief for FCC at 30-42. The precise level of first amendment protection due a cable television operator is clearly an issue of much moment to the industry and ultimately to viewers. However, having closely analyzed the rationale for and workings of the new must-carry rules, we conclude that we again need not resolve this vexing question. Like the original must-carry regime invalidated in Quincy Cable TV, the new, scaled-back edition fails to satisfy even the less-demanding first amendment test of United States v. O’Brien whose use here is advocated by the FCC. See, e.g., Brief for FCC at 30 (describing O’Brien as “the correct test”). We now proceed to offer our application of that test. B. An O’Brien-Tbsi Analysis of the New Regulations In United States v. O’Brien, the Supreme Court stated: [W]e think it clear that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that" }, { "docid": "6536922", "title": "", "text": "on a wide variety of topics and in a wide variety of formats.” Id. at -, 114 S.Ct. at 2456 (quoting Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494, 106 S.Ct. 2034, 2037, 90 L.Ed.2d 480 (1986)). In Turner, which involved a First Amendment challenge by cable operators and programmers to the “must-carry” provisions of the 1992 Cable Act, the Supreme Court addressed the'appropriate level of scrutiny to apply to the regulation of cable operators. As an initial matter, the Court held that the relatively deferential standard that applies to the regulation of broadcast television was inappropriate for cable. Id. at -, 114 S.Ct. at 2456. The Court noted that the “justification for our distinct approach to broadcast regulation rests upon the unique physical limitations of the broadcast medium,” id. at-, 114 S.Ct. at 2456, and held that “[t]he broadcast cases are inapposite in the present context because cable television does not suffer from the inherent limitations that characterize the broadcast medium.” Id. at-, 114 S.Ct. at 2457. The Turner Court held that strict scrutiny — termed by the Court “exacting” or “rigorous” scrutiny — applies to content-based cable regulations and that intermediate scrutiny applies to content-neutral cable regulations. Our precedents thus apply the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content. Laws that compel speakers to utter or distribute speech bearing a particular message are subject to the same rigorous scrutiny. In contrast, regulations that are unrelated to the content of speech are subject to an intermediate level of scrutiny, because in most cases they pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue. Id. at-, 114 S.Ct. at 2459. See also Bery, 97 F.3d at 696-97. The Court acknowledged that “deciding whether a particular regulation is content-based or content-neutral is not always a simple task.” Turner, 512 U.S. at-, 114 S.Ct. at 2459. In making this determination, the Court held that [a]s general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the" }, { "docid": "2701757", "title": "", "text": "at 78 (testimony of Prof. Bagdikian) (testifying that the operators serving one-third of the cable subscribers in the nation are owned by two cable companies). . See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494, 106 S.Ct. 2034, 2038, 90 L.Ed.2d 480 (1986) (holding that operators’ exercise of editorial control \"plainly implicate[s] First Amendment interests.”); Quincy, 768 F.2d at 1452-53; see also Leathers v. Medlock, — U.S. —,—-—, 111 S.Ct. 1438, 1442-43, 113 L.Ed.2d 494 (”[c]able television provides to its subscribers news, information, and entertainment. It is engaged in 'speech' under the First Amendment....”). Although the defendants vigorously contend that the plaintiff programmers have raised no First Amendment issues because their only claim is that broadcasters have been favorably treated, this argument misses the point because it mischaracterizes the programmers’ claims. The programmers do not merely contend that Congress has failed to provide a benefit to programmers that it has provided to others. Instead, the programmers contend that Congress has, by increasing broadcaster speech in a limited forum, reduced the speech of the programmers. This is a First Amendment claim. Quincy, 768 F.2d at 1451-52. . See, e.g., Preferred Communications, Inc., 476 U.S. 488, 106 S.Ct. 2034; Chicago Cable Communications v. Chicago Cable Comm'n, 879 F.2d 1540 (7th Cir.1989) cert. denied, 493 U.S. 1044, 110 S.Ct. 839, 107 L.Ed.2d 835 (1990); Century Communications Corp. v. FCC, 835 F.2d 292 (D.C.Cir.1987), clarified, 837 F.2d 517 (D.C.Cir.), cert, denied, 486 U.S. 1032, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988); Quincy Cable, 768 F.2d 1434; Community Communications Co. v. City of Boulder, 660 F.2d 1370 (10th Cir.1981), cert. dismissed, 456 U.S. 1001, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982); Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C.Cir.), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977); Telesat Cablevision, Inc. v. Riviera Beach, 773 F.Supp. 383 (S.D.FIa.1991); Century Federal, Inc. v. Palo Alto, 710 F.Supp. 1552 (N.D.Cal.1987); Group W Cable, Inc. v. Santa Cruz, 669 F.Supp. 954 (N.D.Cal.1987). .As discussed below, in both cases, the court held FCC must-carry regulations unconstitutional without finding it necessary" }, { "docid": "1984844", "title": "", "text": "(citations omitted). A particular local franchising system may impose only an “incidental” burden on the speech of SMATV operators, and thereby trigger the so-called O’Brien test, see United States v. O’Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968); or, alternatively, the franchising system may impose \"direct” burdens that require stricter First Amendment scrutiny. Cf. Century Communications Corp. v. FCC, 835 F.2d 292, 298 (D.C.Cir.1987) (declining to decide “precise level of first amendment protection due a cable television operator,” and applying O’Brien as minimum standard), clarified, 837 F.2d 517 (D.C.Cir.), cert. denied, 486 U.S. 1032, 108 S.Ct. 2014, 100 L.Ed.2d 602 (1988); Quincy Cable TV v. FCC, 768 F.2d 1434, 1454 (D.C.Cir.1985) (same), cert. denied, 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 977 (1986). Second, the court reviewing an as-applied challenge will have specific information about the local conditions that might justify SMATV franchising. “[Wjhether the means chosen are congruent with the desired end” for purposes of O’Brien or a stricter First Amendment test is a “delicate fact-bound issue.” Century Communications, 835 F.2d at 298. In City of Los Angeles v. Preferred Communications, 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986), a disappointed applicant for a cable television franchise had sued Los Angeles, claiming that the city’s exclusive-franchise regime violated the First Amendment. The Supreme Court allowed the applicant to pursue his complaint, but refused to reach the merits of the First Amendment issue without further factual development. The City has adduced essentially factual arguments to justify the restrictions on cable franchising imposed by its ordinance, but the factual assertions of the City are disputed at least in part by respondent. We are unwilling to decide the legal questions posed by the parties without a more thoroughly developed record of proceedings.... Id. at 494, 106 S.Ct. at 2037. To be sure, the “fitness of the issues for legal decision” is only the first factor in the Abbott Laboratories calculus. If, as here, we find a case unfit for review, then we must weigh the “hardship to the parties of withholding court consideration.” Hardship" }, { "docid": "2085618", "title": "", "text": "* * * and [there is] a resulting felt need to protect children.” Id. at 127-28. Accordingly, it stated that although natural monopoly is not a justification for exclusive franchising for newspapers, “The apparent natural monopoly characteristics of cable television provide * * * an argument for regulation of entry.” Id. at 127-28. See also Tele-Communications of Key West v. United States, 157 F.2d 1330 (D.C.Cir.1985) (Holding that if cable company could show that there were no practical reasons why two cable operators could not serve Air Force base, Air Force’s exclusive franchising scheme would violate the first amendment.) But cf. Preferred Communications v. City of Los Angeles, 754 F.2d 1396, 1404-05 (9th Cir.1985), aff'd and remanded on other grounds, — U.S.-, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986) (Although the Court did not reach the argument that natural monopoly justifies government regulation of cable television because it assumed that competition for cable services is economically feasible in the Los Angeles area, it implied that “natural monopoly” is not a justification for exclusive franchising.) We recognize that there are profound first amendment implications inherent in the regulation of cable operators. Changes in technology such as were presented in the Omega case may require a different approach to exclusive franchising schemes. We are also aware of the difficulties inherent in the regulation of cable television programming. See, e.g., Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (invalidating FCC’s “must carry” cable television regulations on first amendment grounds). Cf. FCC v. Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 691 (1979) (invalidating as beyond F.C.C.’s jurisdiction rules requiring cable operators to make channels available for local access). Thus, we make clear, as did the Supreme Court in Preferred Communications, that we are unwilling to decide any question which is not squarely before us and on which there has not been a full development of the record. We are not faced here with a challenge to the details of Jefferson City’s franchise regulations, and we, of course, consider the “natural monopoly” question only in terms of the competing technologies" }, { "docid": "21116078", "title": "", "text": "“scarcity” argument for treating cable television like broadcast television. In Turner Broadcasting System v. FCC, the Court stated that “the broadcast cases are inapposite in the present context because cable television does not suffer from the inherent limitations that characterize the broadcast medium.” 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). Absent any comparable limitations, the Community Communications court’s analogy between cable and broadcast television loses much of its force, and its holding should have little impact on the present case. Also unhelpful to the Cities’ argument are several Supreme Court decisions clearly indicating that restrictions on cable television operators implicate the free speech and press clauses of the First Amendment. In City of Los Angeles v. Preferred Communications, the Court recognized that a municipal ordinance restricting cable franchising raises a cognizable First Amendment claim. 476 U.S. 488, 494-95, 106 S.Ct. 2034, 2037-38, 90 L.Ed.2d 480 (1986). This notion was later repeated by the Court in Leathers v. Medlock, 499 U.S. 439, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991), and most recently applied in Turner Broadcasting System, 512 U.S. at 622, 114 S.Ct. at 2445 (“Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment”). At this juncture, facing as we do an incomplete factual record, and an area of law that is at best unsettled, the court is unable to find beyond doubt that Classic can prove no set of facts supporting its claim which would entitle it to relief. The Cities’ motions to dismiss Classic’s 42 U.S.C. § 1983 claim based on the deprivation of its free speech rights are therefore denied. F. Cable Act Claim Next, the Cities move to dismiss Classic’s claim under 47 U.S.C. §§ 541 and 555 of the Cable Act. 47 U.S.C. § 541 provides in part that “a franchising authority may not ... unreasonably refuse to award an additional competitive franchise.” If a franchise is unreasonably refused, 47 U.S.C. § 555 provides the potential franchisee with a private cause of action. The Cities" }, { "docid": "2085610", "title": "", "text": "than one cable television system, the local governing body is in the best position to determine which proposed system offers the best service to the public for the lowest cost. Since only one competitor can survive in the market, it makes sense to allow the local government to choose the best applicant. Central Telecommunications, 610 F.Supp. at 899-900 (footnotes omitted), citing Telecommunications of Key West, Inc. v. United States, 757 F.2d 1330, 1338 (D.C.Cir.1985); Omega Satellite Products Co. v. City of Indianapolis, 694 F.2d 119, 127 (7th Cir.1982); and Community Communications, Inc. v. City of Boulder, 660 F.2d 1370, 1378-80 (10th Cir.1981), cert. dismissed, 456 U.S. 1001, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982). The Supreme Court has not directly addressed this issue. In Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), it rejected an argument that the natural monopoly characteristics of the newspaper market gave rise to a duty to provide public access to the press. However, it has approved “far more intrusive regulation of broadcasters than of other media [such as newspapers] * * * because of the inescapable physical limitations on the number of voices that can simultaneously be carried over the electromagnetic spectrum.” Quincy Cable T.V., Inc. v. F.C.C., 768 F.2d 1434, 1448 (D.C.Cir.1985), citing, e.g., FCC v. League of Women Voters of California, 468 U.S. 364, 104 S.Ct. 3106, 82 L.Ed.2d 278 (1984). Thus, the question is whether cable television should be analyzed under the standards applicable to newspapers or those applicable to broadcasters. TCI contends that cable television is entitled to “coextensive protection” with the press media. In its recent decision in Los Angeles v. Preferred Communications, Inc., — U.S. -, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986), the Court suggested that the cable medium may be distinguishable from the newspaper medium and that more government regulation of the cable medium may be permissible because cable requires use of public ways and installation of cable systems may disrupt public order. There, a cable television company sued the City of Los Angeles and its cable franchising department," }, { "docid": "6547688", "title": "", "text": "the fact that the benefit lasts only three years is irrelevant. The Supreme Court has recognized that cable television operators exercise “ ‘a significant amount of editorial discretion regarding what their programming will include.’ ” City of Los Angeles v. Preferred Commc’ns, Inc., 476 U.S. 488, 494, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986) (quoting FCC v. Midwest Video Corp., 440 U.S. 689, 707, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979)). In Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994) (Turner I), the Supreme Court applied intermediate scrutiny to a content-neutral regulation that required carriage of local broadcast stations on cable systems. In doing so, the Court announced that “laws that single out the press, or certain elements thereof, for special treatment pose a particular danger of abuse by the State ... and so are always subject to at least some degree of heightened First Amendment scrutiny.” Turner I, 512 U.S. at 640-41, 114 S.Ct. 2445 (quoting Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 228, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987)). Section 207 does not affect DISH’s ability to offer programs. It affects only when DISH can offer those programs in HD. Even so, Turner I instructs that any law that singles out an element of the press is subject to some form of heightened First Amendment scrutiny. For example, in Turner I, the Supreme Court determined that regulations that “impose special obligations upon cable operators and special burdens upon cable programmers” implicate the First Amendment. Turner I, 512 U.S. at 641, 114 S.Ct. 2445. Applying that logic to the case at hand, while § 207’s obligations and burdens on satellite carriers are minimal and nuanced, they do exist. Therefore, the First Amendment is likely implicated. C Strict scrutiny applies to government actions that stifle or promote speech on account of its message. Such laws conflict with basic First Amendment principles valuing and protecting an individual’s right to decide which ideas and beliefs are worth expressing, and almost always violate the First Amendment. See id. (acknowledging that “the First" }, { "docid": "2775827", "title": "", "text": "speech was no greater than was reasonably required to serve the important interest of preserving local broadcasting. Buckeye Cablevision, Inc. v. FCC, supra, 387 F.2d at 225. In recent years the lower federal courts have subjected FCC regulation of cable television to a far more rigorous constitutional analysis. It is now clearly established, for example, that cable operators engage in conduct protected by the First Amendment. See, e.g., Tele-Communications of Key West, Inc. v. United States, 757 F.2d 1330, 1336 (D.C.Cir.1985); Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396 (9th Cir.1985); Midwest Video Corp. v. FCC, 571 F.2d 1025, 1052-1057 (8th Cir.1978), aff'd on other grounds, 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). Most of these courts, mindful of the Supreme Court’s repeated admonitions to be sensitive to the unique features of each medium of expression, have cautioned against reflexive invocation of the more forgiving First Amendment standards applicable to broadcast regulations. See, e.g., Preferred Communications, Inc. v. City of Los Angeles, supra, 754 F.2d at 1403; Home Box Office, Inc. v. FCC, 567 F.2d 9, 44-45 (D.C.Cir.) (per curiam), cert. denied, 434 U.S. 829, 98 S.Ct. 111, 54 L.Ed.2d 89 (1977). Indeed, in Home Box Office this court noted that earlier cases that had considered the intersection of the First Amendment and cable television regulations had incorrectly relied on Supreme Court precedent developed in the context of regulation of the broadcast media. Of particular note, the court “rejected” by name the reasoning of the Eighth Circuit in Black Hills Video Corp. v. FCC, supra, the only court to have explicitly considered the constitutionality of the must-carry rules. 567 F.2d at 45 n. 80. At issue in Home Box Office were a number of FCC regulations limiting the programming fare a cablecaster could offer its subscribers. The Commission defended the rules by suggesting that they were necessary to assure that the various forms of pay television, including cable, not degrade the quality of programming on conventional broadcast television. As in the present controversy, the Commission suggested that the competitive injury to broadcasters would be" }, { "docid": "22994540", "title": "", "text": "has a large measure of journalistic freedom but not as large as that exercised by a newspaper”). In contrast, we have not permitted that level of government interference in the context of the print media. In Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974), for instance, we invalidated a Florida statute that required newspapers to allow, free of charge, a right of reply to political candidates whose personal or professional character the paper assailed. We rejected the claim that the statute was constitutional because it fostered speech rather than restricted it, as well as a related claim that the newspaper could permissibly be made to serve as a public forum. Id., at 256-268. We also flatly rejected the argument that the newspaper’s alleged media monopoly could justify forcing the paper to speak in contravention of its own editorial discretion. Id., at 256. Our First Amendment distinctions between media, dubious from their infancy, placed cable in a doctrinal wasteland in which regulators and cable operators alike could not be sure whether cable was entitled to the substantial First Amendment protections afforded the print media or was subject to the more onerous obligations shouldered by the broadcast media. See Los Angeles v. Preferred Communications, Inc., 476 U. S. 488, 496 (1986) (Blackmun, J., concurring) (“In assessing First Amendment claims concerning cable access, the Court must determine whether the characteristics of cable television make it sufficiently analogous to another medium to warrant application of an already existing standard or whether those characteristics require a new analysis”). Over time, however, we have drawn closer to recognizing that cable operators should enjoy the same First Amendment rights as the nonbroadcast media. Our first ventures into the world of cable regulation involved no claims arising under the First Amendment, and we addressed only the regulatory authority of the Federal Communications Commission (FCC) over cable operators. Only in later cases did we begin to address the level of First Amendment protection applicable to cable operators. In Preferred Communications, for instance, when a cable operator challenged the city of Los Angeles’ auction process for a" }, { "docid": "1352596", "title": "", "text": "rather than the community served by the cable operator) violated the First Amendment. Relying on Quincy Cable TV v. F.C.C., 768 F.2d 1434 (D.C.Cir.1985), cert. denied sub. nom., N.A.B. v. Quincy Cable TV, Inc., 476 U.S. 1169, 106 S.Ct. 2889, 90 L.Ed.2d 977 (1986) and Preferred Communications, Inc. v. City of Los Angeles, 754 F.2d 1396 (9th Cir.1985), aff'd and remanded, 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986), CCTV argues that the City’s examination of the subject matter which CCTV, in the exercise of its editorial discretion, chose as its L.O. programming constituted impermissible content regulation. CCTV views the Commission’s actions as violative of the First Amendment just as clearly as if the City imposed a fine on the Chicago Tribune for printing articles of which it did not approve. (See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974).) The Commission, on the other hand, disputes CCTV’s contention that it required the cable operator to produce L.O. programming only on subjects the Commission decreed appropriate. To the contrary, the Commission argues it merely determined that CCTV’s L.O. programming should relate to local (i.e., Chicago) subjects. This, the Commission concludes, is wholly permissible under the First Amendment. There is no doubt that cable operators engage in conduct which implicates First Amendment issues. Preferred Communications, 106 S.Ct. at 2037; Quincy Cable, 768 F.2d at 1444. The strength of that protection is open to some debate. Different communications media are treated differently for First Amendment purposes. Preferred Communications, 106 S.Ct. at 2038 (Blackmun, J., concurring). Government regulation of newspapers is extremely suspect, see Miami Herald, supra, while government regulation of broadcasters is more readily tolerated. See Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The Supreme Court has not yet determined the appropriate standard for review for a First Amendment challenge of government regulation of cable television. See Preferred Communications, 106 S.Ct. at 2038 (Blackmun, J., concurring). The lower courts have reached varying results in determining the degree of First Amendment protection to be" }, { "docid": "17642826", "title": "", "text": "petitioners that the question must be answered in view of the precise nature of their objection. Blum v. Yaretsky, 457 U.S. 991, 1003, 102 S.Ct. 2777, 2785, 73 L.Ed.2d 534 (1982). But what is the nature of their objection? One frame of reference reveals “a battle for supremacy between the asserted rights of private persons.” Robert J. Glen-non, Jr. & John E. Nowak, A Functional Analysis of the Fourteenth Amendment “State Action” Requirement, 1976 Sup.Ct. Rev. 221, 230. That is, petitioners are merely complaining about section 10(a)’s and section 10(c)’s restoring to cable operators’ their option to reject indecent programming on their cable systems. Cable operators “are entitled to the protection of the speech and press provisions of the First Amendment.” Turner Broadcasting Sys., Inc. v. FCC, — U.S. at -, 114 S.Ct. at 2456. When an operator decides what programming will appear on its system, the operator engages in free speech. See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494, 106 S.Ct. 2034, 2037-38, 90 L.Ed.2d 480 (1986); FCC v. Midwest Video Corp., 440 U.S. at 707, 99 S.Ct. at 1445. It is therefore easy to see how sections 10(a) and 10(c), by giving operators editorial control over indecent programming on their systems’ access channels, promote the operators’ freedom of speech. Petitioners, on the other hand, do not spell out in their briefs exactly how the same provisions retard their freedom of speech. We gather from their submissions to the Commission that they have members who wish to watch programs on access channels describing or depicting “sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards for the cable medium”; and that the programmers who count themselves among the petitioners wish to produce this sort of material for television. These interests will be damaged, petitioners told the Commission, because sections 10(a) and 10(c) will reduce the amount of indecent programming on cable access channels. The idea appears to be that if legislation altering the existing state of affairs threatens to lessen the quantity of indecent speech, the government" }, { "docid": "22755324", "title": "", "text": "local stations,” and thus to the extent the rules have any effect at all, “it will be only to replace the mix chosen by cablecasters — whose livelihoods depend largely on satisfying audience demand — with a mix derived from congressional dictate.” Id., at 61. This direct appeal followed, see § 23, 47 U. S. C. § 555(c)(1) (1988 ed., Supp. IV), and we noted probable jurisdiction. 509 U. S. 952 (1993). II There can be no disagreement on an initial premise: Cable programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment. Leathers v. Medlock, 499 U. S. 439, 444 (1991). Through “original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,” cable programmers and operators “see[k] to communicate messages on a wide variety of topics and in a wide variety of formats.” Los Angeles v. Preferred Communications, Inc., 476 U. S. 488, 494 (1986). By requiring cable systems to set aside a portion of their channels for local broadcasters, the must-carry rules regulate cable speech in two respects: The rules reduce the number of channels over which cable operators exercise unfettered control, and they render it more difficult for cable programmers to compete for carriage on the limited channels remaining. Nevertheless, because not every interference with speech triggers the same degree of scrutiny under the First Amendment, we must decide at the outset the level of scrutiny applicable to the must-carry provisions. A We address first the Government’s contention that regulation of cable television should be analyzed under the same First Amendment standard that applies to regulation of broadcast television. It is true that our cases have permitted more intrusive regulation of broadcast speakers than of speakers in other media. Compare Red Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) (television), and National Broadcasting Co. v. United States, 319 U. S. 190 (1943) (radio), with Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241 (1974) (print), and Riley v. National Federation of" }, { "docid": "21116077", "title": "", "text": "to use the medium.” Thus, the Cities argue, they did not violate Classic’s First Amendment rights because, under Community Communications, Classic has no constitutional right to use the public domain to disseminate its messages by cable television. The court disagrees with the Cities’ application of Community Communications. In addition to factual dissimilarities, the law of Community Communications is not helpful to the Cities’ argument. That court premised its holding on what it perceived as a likeness between cable and broadcast television. Community Communications, 660 F.2d at 1370. The Community Communications court noted that “inherent limitations on the number of speakers who can use a medium to communicate has been given as a primary reason why extensive regulation of wireless broadcasting is constitutionally permissible.” Id. Thus, that court reasoned, since cable television is also inherently limited by the number of speakers, extensive regulation of cable television is likewise constitutionally permissible. The validity of the Community Communications court’s premise, however, has become questionable in light of a more recent Supreme Court decision which appears to eliminate the “scarcity” argument for treating cable television like broadcast television. In Turner Broadcasting System v. FCC, the Court stated that “the broadcast cases are inapposite in the present context because cable television does not suffer from the inherent limitations that characterize the broadcast medium.” 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). Absent any comparable limitations, the Community Communications court’s analogy between cable and broadcast television loses much of its force, and its holding should have little impact on the present case. Also unhelpful to the Cities’ argument are several Supreme Court decisions clearly indicating that restrictions on cable television operators implicate the free speech and press clauses of the First Amendment. In City of Los Angeles v. Preferred Communications, the Court recognized that a municipal ordinance restricting cable franchising raises a cognizable First Amendment claim. 476 U.S. 488, 494-95, 106 S.Ct. 2034, 2037-38, 90 L.Ed.2d 480 (1986). This notion was later repeated by the Court in Leathers v. Medlock, 499 U.S. 439, 111 S.Ct. 1438, 113 L.Ed.2d 494 (1991), and most recently applied" }, { "docid": "22994541", "title": "", "text": "entitled to the substantial First Amendment protections afforded the print media or was subject to the more onerous obligations shouldered by the broadcast media. See Los Angeles v. Preferred Communications, Inc., 476 U. S. 488, 496 (1986) (Blackmun, J., concurring) (“In assessing First Amendment claims concerning cable access, the Court must determine whether the characteristics of cable television make it sufficiently analogous to another medium to warrant application of an already existing standard or whether those characteristics require a new analysis”). Over time, however, we have drawn closer to recognizing that cable operators should enjoy the same First Amendment rights as the nonbroadcast media. Our first ventures into the world of cable regulation involved no claims arising under the First Amendment, and we addressed only the regulatory authority of the Federal Communications Commission (FCC) over cable operators. Only in later cases did we begin to address the level of First Amendment protection applicable to cable operators. In Preferred Communications, for instance, when a cable operator challenged the city of Los Angeles’ auction process for a single cable franchise, we held that the cable operator had stated a First Amendment claim upon which relief could be granted. Id., at 493. We noted that cable operators communicate various topics “through original programming or by exercising editorial discretion over which stations or programs to include in [their] repertoire.” Id., at 494. Cf. FCC v. Midwest Video Corp., 440 U. S. 689, 707 (1979) (Midwest Video II) (“Cable operators now share with broadcasters a significant amount of editorial discretion regarding what their programming will include”). But we then lik ened the operators’ First Amendment interests to those of broadcasters subject to Red Lion’s right of access requirement. 476 U. S., at 494-495. Five years later, in Leathers v. Medlock, 499 U. S. 439 (1991), we dropped any reference to the relaxed scrutiny permitted by Red Lion. Arkansas had subjected cable operators to the State’s general sales tax, while continuing to exempt newspapers, magazines, and scrambled satellite broadcast television. Cable operators, among others, challenged the tax on First Amendment grounds, arguing that the State could" }, { "docid": "1352597", "title": "", "text": "appropriate. To the contrary, the Commission argues it merely determined that CCTV’s L.O. programming should relate to local (i.e., Chicago) subjects. This, the Commission concludes, is wholly permissible under the First Amendment. There is no doubt that cable operators engage in conduct which implicates First Amendment issues. Preferred Communications, 106 S.Ct. at 2037; Quincy Cable, 768 F.2d at 1444. The strength of that protection is open to some debate. Different communications media are treated differently for First Amendment purposes. Preferred Communications, 106 S.Ct. at 2038 (Blackmun, J., concurring). Government regulation of newspapers is extremely suspect, see Miami Herald, supra, while government regulation of broadcasters is more readily tolerated. See Red Lion Broadcasting Co. v. F.C.C., 395 U.S. 367, 89 S.Ct. 1794, 23 L.Ed.2d 371 (1969). The Supreme Court has not yet determined the appropriate standard for review for a First Amendment challenge of government regulation of cable television. See Preferred Communications, 106 S.Ct. at 2038 (Blackmun, J., concurring). The lower courts have reached varying results in determining the degree of First Amendment protection to be accorded cable television operators. Some courts have held that cable broadcasting is very different from newspaper publishing where very little government regulation is constitutionally permissible. E.g., Community Communications Co., Inc. v. City of Boulder, 660 F.2d 1370 (10th Cir.1981), cert. dismissed, 457 U.S. 1001, 102 S.Ct. 2287, 73 L.Ed.2d 1296 (1982). Other courts have determined that cable television is quite distinct from the broadcast media, where substantially more government regulation is constitutionally permissible. E.g., Quincy Cable, supra. When the Supreme Court eventually decides this issue, it probably will adopt an intermediate approach. It probably will recognize that the strict limits placed on the broadcast media by the physical constraints of the electromagnetic spectrum do not exist in the realm of cable television. Quincy Cable, 768 F.2d at 1448. On the other hand, the Court will probably recognize that, at least in some instances, cable television possesses natural monopoly characteristics that warrants greater governmental regulation. See Omega Satellite Products Co. v. City of Indianapolis, 694 F.2d 119, 127-128 (7th Cir.1982). We conclude that the appropriate framework" }, { "docid": "3719782", "title": "", "text": "case. Because we invalidate the entire new must-carry regime as unjustified and as unduly sweeping, we do not reach — and therefore express no opinion on — the subsidiary first amendment challenges to particular facets of the rules, or the arguments based on the APA that the rules are too narrow in scope. II. Opinion A. The Appropriate Level of First Amendment Scrutiny A threshold question for our first amendment analysis is what standard of review to apply. As in Quincy Cable TV, the parties dwell heavily on this issue, offering clever and flavorful analogies to other corners of first amendment law on which more light has been shed. Petitioners characterize the must-carry rules as posing more than an incidental burden on speech, likening the rules to the newspaper right-of-reply statute invalidated in Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 94 S.Ct. 2831, 41 L.Ed.2d 730 (1974), where the Supreme Court held that the enactment impermissi-bly interfered with the newspaper’s constitutionally protected “editorial discretion.” Toward this end, petitioners also offer the recent case of City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 106 S.Ct. 2034, 90 L.Ed.2d 480 (1986), where the Court noted that the selection and organization of programs on cable television does involve some degree of editorial discretion. Id. 106 S.Ct. at 2037. See Brief for Joint Petitioners at 10-21. The FCC counters by characterizing the must-carry rules as a commercial regulation that burdens speech in a far more attenuated fashion. Accordingly, the FCC argues, the must-carry rules are more appropriately analyzed under the standards set forth in United States v. O’Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), where the Supreme Court stated that to be valid, a regulation incidentally burdening speech and not aimed at the suppression of free expression must advance a substantial governmental interest and must be no more restrictive than necessary to accomplish that end. O’Brien, 391 U.S. at 377, 88 S.Ct. at 1679. See Brief for FCC at 30-42. The precise level of first amendment protection due a cable television operator is clearly an" }, { "docid": "6536921", "title": "", "text": "access users, and cable operators. In this case, Time Warner alleges that the placement of Fox News and BIT on Crosswalks violates Time Warner’s editorial autonomy under Section 544(f)(1). The analysis for such a violation is substantially the same as for a violation of the First Amendment and, therefore, I conclude for the same reasons discussed below, that the City’s .actions violate Section 544(f)(1) of the Cable Act. C. The City’s Actions Violate Time Warner’s First Amendment Rights. 1. First Amendment Jurisprudence The Supreme Court’s First Amendment jurisprudence in the area of cable regulation is not well settled. It cannot be disputed, however, that “[c]able programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment.” Turner, 512 U.S. at -, 114 S.Ct. at 2456. The Supreme Court held that this is so because [t]hrough “original programming or by exercising editorial discretion over which stations or programs to include in its repertoire,” cable programmers and operators “see[k] to communicate messages on a wide variety of topics and in a wide variety of formats.” Id. at -, 114 S.Ct. at 2456 (quoting Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 494, 106 S.Ct. 2034, 2037, 90 L.Ed.2d 480 (1986)). In Turner, which involved a First Amendment challenge by cable operators and programmers to the “must-carry” provisions of the 1992 Cable Act, the Supreme Court addressed the'appropriate level of scrutiny to apply to the regulation of cable operators. As an initial matter, the Court held that the relatively deferential standard that applies to the regulation of broadcast television was inappropriate for cable. Id. at -, 114 S.Ct. at 2456. The Court noted that the “justification for our distinct approach to broadcast regulation rests upon the unique physical limitations of the broadcast medium,” id. at-, 114 S.Ct. at 2456, and held that “[t]he broadcast cases are inapposite in the present context because cable television does not suffer from the inherent limitations that characterize the broadcast medium.” Id. at-, 114 S.Ct. at 2457. The Turner Court held that" } ]

[ { "docid": "22310837", "title": "", "text": "increased costs to the joint venture and its subcontractors. They contend that in light of the serious difficulties encountered because of defects and ambiguities in the plans, defendant should in all equity have suspended the work for its own convenience in order to work out a corrective set of plans. See T. C. Bateson Construction Co. v. United States, 162 Ct. Cl. 145, 187, 319 F. 2d 135, 160 (1963); Ozark Dam Constructors v. United States, 153 Ct. Cl. 120, 288 F. 2d 913 (1961). Failure to have done so is alleged to'have caused unnecessary delay and uncertainty in plaintiffs’ performance and to have resulted in substantial additional expense and hardship. It is the actual costs of this delay that plaintiffs now seek to recover through equitable adjustment. To be compensable under the contract, however, delay must be for an unreasonable length of time. River Construction Corp. v. United States, supra, p. 270; F. H. McGraw & Co. v. United States, supra, pp. 506-7. Further, that delay must be shown to have been proximately caused by defendant’s actions. River Construction Corp. v. United States, supra, p. 270; Laburnum Construction Corp. v. United States, supra, p. 349; J. A. Ross & Co. v. United States, 126 Ct. Cl. 323, 331-4, 115 F. Supp. 187 (1953). Plaintiffs’ performance here required 318 days, or approximately 60 percent longer to complete than had been anticipated; but this figure is not of itself decisive, especially in a case where plaintiffs’ bid was submitted on the basis of a very tight work schedule that could only have been fulfilled under ideal conditions and where much of the delay experienced resulted from a variety of largely unavoidable circumstances. The plans furnished contained a substantial number of discrepancies, as any competent person who examined them at the time the bids were being prepared could readily have discerned. The fact that certain changes and corrections would have to be made was obvious. Apparent, too, was the implication that when such changes were effected certain delays in the prosecution of the work would likely result. Griffiths v. United States, 74" } ]

[ { "docid": "12011774", "title": "", "text": "is evidence which could convince an unprejudiced mind of the truth of the facts to which the evidence is directed.” Koppers Co. v. United States, 405 F.2d 554, 558, 186 Ct.Cl. -, - (Dec. 1968). The evidence relied upon by the board falls far short of this standard, and the conclusion reached on the causation issue is in error as a matter of law. . Where unreasonable delay is caused by the Government, the “Rice doctrine” does not preclude the recovery of damages flowing from that portion of the delay which is unreasonable. E. g., Gardner Displays Co. v. United States, 346 F.2d 585, 588-589, 171 Ct.Cl. 497, 503-504 (1965) ; Laburnum Constr. Corp. v. United States, 325 F.2d 451, 163 Ct.Cl. 339 (1963). . See also United States v. Blair, 321 U.S. 730, 64 S.Ct. 820, 88 L.Ed. 1039 (1944), where, even though the contract was performed on time, the contractor sought damages on the theory that he could have completed performance substantially earlier had he not been delayed. . United States v. Howard P. Foley Co., 329 U.S. 64, 63 S.Ct. 120 (1946) ; United States v. Rice, 317 U.S. 61, 63 S.Ct. 120, 87 L.Ed. 53 (1942) ; H. E. Crook Co. v. United States, 270 U.S. 4, 46 S.Ct. 184, 70 L.Ed. 438 (1926) ; Chouteau v. United States, 95 U.S. 61, 24 L.Ed. 371 (1877). DAVIS, Judge (concurring): I join in the court’s opinion because I understand it to lay down and apply the same standard as has been used by the Boards of Contract Appeals in cases such as Ivey Bros. Construction Co., Inc., Eng. BCA No. 1764 (1960) (unreported deci sion); Gust K. Newberg Construction Co., Eng. BCA No. 2754, 67-2 BCA ¶ 6490, at 30.116-18; I. K. Construction Enterprises, Inc., ASBCA No. 10987, 67-1 BCA ¶ 6271, at 29,027; Eastridge Excavating Contractors, Inc., Eng. BCA No. 2683, 67-1 BCA ¶ 6379, at 29,534-35; A. L. Harding, Inc., DCAB No. PR-44, 65-2 BCA ¶ 5261, at 24,777, aff’d on reconsideration, 66-1 BCA ¶ 5463, at 25,590-91, and Power City Construction & Equipment, Inc.," }, { "docid": "22821259", "title": "", "text": "inquire about the conduit sleeves and any ambiguity would have therefore been patent. Vista Scientific Corp. v. United States, 808 F.2d 50, 52 (Fed.Cir.1986). If a contract contains a patent ambiguity, the contractor is under a duty to inquire and must seek clarification of the proper contract interpretation. Interstate Gen. Gov’t Contractors, Inc., v. Stone, 980 F.2d 1433 (Fed.Cir.1992); J.A. Jones Constr. Co. v. United States, 395 F.2d 783, 790, 184 Ct.Cl. 1 (1968) (holding that failure to recognize an obvious ambiguity does not excuse the contractor from its duty to seek clarification). This policy, known as the patent ambiguity doctrine, was established to prevent contractors from taking advantage of the government, protect other bidders by assuring that all bidders bid on the same specifications, and materially aid the administration of government contracts by requiring that ambiguities be raised before the contract is bid, thus avoiding costly litigation after the fact. Newsom, 676 F.2d at 649. In addition, where a discrepancy exists in the contract drawings, as Community here alleges, a contractor may be required to seek clarification. Jefferson Constr. Co. v. United States, 364 F.2d 420, 176 Ct.Cl. 1363 (1966), cert. denied, 386 U.S. 914, 87 S.Ct. 865, 17 L.Ed.2d 786 (1967). For example, in Woodcrest Constr. Co. v. United States, 408 F.2d 406, 187 Ct.Cl. 249 (1969), cert. denied, 398 U.S. 958, 90 S.Ct. 2164, 26 L.Ed.2d 542 (1970), one contract drawing showed an existing communications manhole while a related drawing indicated that the same manhole was to be constructed by the contractor. Id. 408 F.2d at 412. The court considered this discrepancy obvious and held that the contractor should have asked for clarification. Id. 408 F.2d at 412-13. However, it is not enough under the duty to inquire that a contractor merely make an initial inquiry. Beacon Constr. Co. v. United States, 314 F.2d 501, 504, 161 Ct.Cl. 1 (1963) (holding that duty to inquire requires the contractor to call attention to obvious contract omissions and make certain they were deliberate). Also instructive on this point is Construction Service Co., ASBCA No. 4998, 59-1 BCA (CCH) ¶" }, { "docid": "23345446", "title": "", "text": "Therefore, we hold that the contractor complied with the “Scheduling of Work” provision by giving as much notice as was reasonably required by that provision. After the contractor notified the project manager that the contractor’s reasonable efforts had not resulted in gaining entry to certain apartments, the Navy was under an implied obligation to provide such access so that the contractor could complete the contract within the time required by its terms. Consequently, if any part of the contractor’s work was thereafter delayed for an unreasonable period of time because of the Navy’s failure to provide access to the apartments, the contractor is, under the “Suspension of Work” clause, entitled to an increase in the cost of performing the contract. Chaney and James Constr. Co. v. United States, 421 F.2d 728, 190 Ct.Cl. 699 (1970). We have reached this conclusion on several grounds. We find that if their ordinary meaning is attributed to the words used in the “Scheduling of Work” provision, there is simply nothing in that specification or elsewhere which states that the contractor is required to make an arrangement with or obtain an agreement from each apartment occupant as the Board decided. It was reasonable for the contractor to interpret this provision of the specifications to relieve it of further responsibility to notify the occupants after reasonable efforts to give the notice had been exhausted. If the Government had intended the specifications to convey an intent to require the contractor to make an agreement covering the matters found by the Board with each of the 656 occupants, the drafters of the specifications wholly failed to convey this meaning. Therefore, the provision must be construed against the Government. Troup Bros., Inc. v. United States, 648 F.2d 719, 224 Ct.Cl. 594 (1980); Singer-General Precision, Inc. v. United States, 427 F.2d 1187, 192 Ct.Cl. 435 (1970); Jefferson Constr. Co. v. United States, 151 Ct.Cl. 75 (1960). The conduct of both parties during construction and before the contractor’s claim was submitted to the project manager provides persuasive evidence that the contract should be construed as urged by the contractor. Although the" }, { "docid": "21888046", "title": "", "text": "are afforded an opportunity to show cause why the Government should not, by written notice of default, terminate this contract. Any facts bearing on this question should be presented in writing to this office within ten (10) days after receipt of this letter. Your failure to reply within this time may be considered as an admission that no excuse exists. Your attention is invited to the rights of the Government under the ‘Default’ Article and your contractual liabilities in the event a decision is made to terminate for default.” . On August 11, 1969, plaintiff was requested to submit an offer for an equitable adjustment in contract price for the shirts subject to option 1 (104,560 shirts) and a delivery schedule for return of shirts included in option 4 (73,630 shirts). On December 29, 1969, the contracting officer stated 105,526 shirts were subject to option 1 and 72,363 shirts were subject to option 4. Plaintiff has not submitted offers and the contracting officer has not made a unilateral determination thereon. . 442 F.2d 364, 194 Ct.Cl. 799 (1971). . 385 F.2d 438, 181 Ct.Cl. 29 (1967). . Len Co. & Associates v. United States, supra note 12, 385 F.2d at 451-452, 181 Ct. Cl. at 51-52. . Id., 385 F.2d at 452, 181 Ct.Cl. at 52. . United States v. Utah Constr. & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966) ; Len Co. & Associates v. United States, supra note 12, 385 F.2d at 441, 181 Ct.Cl. at 36. . United States v. Utah Constr. & Mining Co., supra note 15, 384 U.S. at 418-422, 86 S.Ct. 1545. . Zidell Explorations, Inc. v. United States, 427 F.2d 735, 737, 192 Ct.Cl. 331, 335 (1970). . Nager Elec. Co. v. United States, 368 F. 2d 847, 859, 177 Ct.Cl. 234, 251 (1966). . United States v. Hamden Co-Operative Creamery Co., 297 F.2d 130 (2d Cir. 1961) ; Fishel Prods. Co. v. Commodity Credit Corp., 415 F.2d 1255 (9th Cir. 1969), cert. denied, 397 U.S. 962, 90 S.Ct. 995, 25 L.Ed.2d 254 (1970). . MIL-S-4956C (USAF) (Jan." }, { "docid": "14270251", "title": "", "text": "an inadequate factual basis. A sound appraisal may demand that the motion be denied and that the case proceed to trial. * * * ” See also United States v. Small, 24 F.R.D. 429 (S.D. N.X.1959). . See generally, Brister & Koester Lumber Corp. v. United States, 188 F.2d 986 (D.C.Cir. 1951); United States v. Blake, 161 F.Supp. 76 (E.D.N.C.1958); Wessel, Duval & Co. v. United States, 126 F.Supp. 79 (S.D.N.Y.1954). . In cases where the court’s decision was contrary to that of the administrative boards and the board had made no findings on the quantum of an equitable adjustment determined to be due, this court retained the case and permitted a trial on that issue, E. H. Sales, Inc. v. United States, No. 75-61, Ct.Cl., January 22, 1965. Jack Stone Co. v. United States, Ct.Cl., 344 F.2d 370, April 16, 1965. But see, Utah Construction and Mining Co. v. United States, 339 F.2d 606, December 11, 1964, where the court resolved, on a hypothetical basis, the disposition of the concrete aggregate claim which had been rejected by the administrative board as untimely. The issue of whether to suspend proceedings was not, at that time, squarely before the court; the issue was only marginally raised by defendant and was not briefed. Since that time, in this and several other cases, we have had the benefit of argument, briefs, and more detailed reflection on the question. Therefore, the conclusion in the Utah case does not, in view of the circumstances under which it was made, foreclose our reconsideration of the issue. . The Armed Services Board of Contract Appeals has consistently held that it did not have jurisdiction to- review the decisions of the Federal Housing Commissioner on contracts sueh as that in issue here, Len Co. and Associates, 1962 BCA 17854 (ASBCA 1962); Anthony Grace & Sons, Inc., 1962 BCA 17882 (ASBCA 1962) ; see also Centex Constr. Co. v. United States, 162 Ct.Cl. 211 (1963). . See Schultz, Wunderlich Revisited: New Limits on Judicial Review of Administrative Determination of Government Contract Disputes, 29 Law & Contemp.Prob. 115, 127 (1964);" }, { "docid": "21396552", "title": "", "text": "and to comply with the administrative procedures in the contract that the contractor or supplier is justified in concluding that those procedures have thereby become ‘unavailable.’” United States v. Anthony Grace & Sons, Inc., 384 U.S. 424, 429-30, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966). A controversy “arises under” the contract and is subject to the disputes clause “to the extent complete relief is available under a specific provision of the contract.” Edward R. Marden Corp. v. United States, 194 Ct.Cl. 799, 804, 442 F.2d 364, 366-67 (1971). “A corollary principle is that, to the extent complete relief is not made available under a specific contract provision, a controversy is not subject to administrative determination via the Disputes clause and may be tried de novo in the proper court.” Id. at 805, 442 F.2d at 367; Utah Constr., 384 U.S. at 402, 412, 86 S.Ct. 1545. “Complete relief’ means a reasonably adequate substitute for the damages available in a breach action. See William Green Constr. Co., Inc. v. United States, 201 Ct.Cl. 616, 622-26, 477 F.2d 930, 934-37 (1973) (contractor does not retain breach claim for improper default termination where convenience termination award available under contract provides “a full and permissible substitute for the award of damages under the former ‘breach’ claim”), cert. denied, 417 U.S. 909, 94 S.Ct. 2606, 41 L.Ed.2d 213 (1974); Chaney & James Constr. Co. v. United States, 190 Ct.Cl. 699, 706-07, 421 F.2d 728, 732 (1970) (where contract clause is intended as substitute for action at law for breach, “the contractor should be entitled to get the same relief under the clause that he could get in the absence of the clause if he sued for breach of contract”); Gregory Lumber Co. v. United States, 9 Cl.Ct. 503, 517 (a claim arises under the contract “when there is a specific contractual clause through which the contractor can get ‘all the relief to which it is entitled and asks’ ”) (quoting Zidell Explorations, Inc. v. United States, 192 Ct.Cl. 331, 334, 427 F.2d 735, 737 (1970)). A contract provision affording complete relief serves to convert a" }, { "docid": "4226341", "title": "", "text": "as earlier Indicated. Note 13 supra. Lewis Constr. Co., ASBCA No. 5509, 60—2 BOA ¶ 2732. This case is not further developed nor distinguished in the board’s decision. As explained in Utah, supra, 384 U.S. 394 (1966). See also the recent decision in Chaney & James Constr. Co. v. United States, 190 Ct. Cl. 699, 421 F. 2d 728 (1970); T. C. Bateson Constr. Co. v. United States, 162 Ct. Cl. 145, 319 F. 2d 135 (1963); Wunderlich Contracting Co. v. United States, 173 Ct. Cl. 180, 351 F. 2d 956 (1965); Jack Clark, ASBCA No. 3672, 57-2 BCA ¶ 1402. In the Bateson case 162 Ct. Cl. at 185, 319 F. 2d at 158-59, the com-t stated: “At the outset, we are of the opinion that there was no breach of the contract by the Government. What the Government did with respect to putting civil service employees on the job was within the terms of the contract. This is not to say, however, that the Government could take refuge in the contract provisions and perform acts which it knew would delay and hinder the contractor in the performance of the work. In other words, in our opinion, the Govern- meat had the right to do any act within the terms of the contract, .but if said action caused plaintiff delay and damages it follows that under certain circumstances the Government is liable to the contractor therefor, * * * * * “Article GC — 11 of the contract was designed to incorporate and go beyond the principle that it is an implied provision of any contract that neither party will do anything to prevent performance thereof by the other party or' will hinder or delay him in his performance. George A. Fuller Co. v. United States, 108 Ct. Cl. 70, 94; Restatement of the Law of Contracts, sections 295, 315;. Williston on Contracts, sections 677, 1318; Chalender v. United States, 127 Ct. Cl. 557, 563; The Kehm Corp. v. United States, 119 Ct. Cl. 454, 470.” Note 14 supra. H. E. Crook Co. v. United States, 270 U.S. 4" }, { "docid": "21263190", "title": "", "text": "increase in the cost of performance of this contract (excluding profit) necessarily caused by the unreasonable suspension, delay, or interruption, and the contact modified in writing accordingly. However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor____ The content of the Suspension of Work clause has been delineated in precedent, binding on this court, of the Court of Claims and the Federal Circuit. A primary objective of the Suspension of Work clause is to provide a contractual basis for compensating a contractor for government-caused delays of an unreasonable duration. Chaney & James Constr. Co. v. United States, 190 Ct.Cl. 699, 421 F.2d 728 (1970). In order to recover under the Suspension of Work clause, a contractor must show that (1) contract performance was delayed; (2) the government directly caused the delay; (3) the delay was for an unreasonable period of time; and (4) the delay injured the contractor in the form of additional expense or loss. John A. Johnson & Sons, Inc. v. United States, 180 Ct.Cl. 969, 986, 1967 WL 8810 (1967); River Constr. Cory, v. United States, 159 Ct.Cl. 254, 270, 1962 WL 9302 (1962). The burden of proof is upon the contractor to establish that defendant did in fact cause delay, and further that any delay adversely affected the project, entitling the plaintiff to an equitable adjustment. See William F. Klingen-smith, Inc. v. United States, 731 F.2d 805 (Fed.Cir.1984); Blinderman Constr. Co. v. United States, 695 F.2d 552 (Fed.Cir.1982); DeMatteo Constr. Co. v. United States, 220 Ct.Cl. 579, 600 F.2d 1384 (1979). Constructive suspension results, even when a CO fails to issue a stop work order, when a contractor is effectively suspended or delayed. Merritt-Chapman & Scott Corp. v. United States, 192 Ct.Cl. 848, 429 F.2d 431, 443 (1970). The clause does not define what is a reasonable or unreasonable period of delay. DeMatteo Constr. Co., 600 F.2d at 1390. Whether a particular delay is reasonable or" }, { "docid": "23345445", "title": "", "text": "U.S.C. § 609(b). It is with this conclusion of law that we disagree. The Government has correctly observed that this is not a case in which the Government expressly contracted to provide access to the premises to perform the contract work, as in Delta Equipment & Constr. Co. v. United States, 104 F.Supp. 549, 122 Ct.Cl. 340 (1952). Nor is it a case like Broome Constr., Inc. v. United States, 492 F.2d 829 (Ct.Cl.1974), and similar cases where the courts have held that the contractor is not entitled to an adjustment under the “Suspension of Work” clause where the claimed delays were due to the acts of another contractor or to bad weather. The answer to the question is not free of doubt. However, after considering the language of the specifications and other pertinent facts and circumstances, we conclude that there should be applied here the rule enunciated in Worthington Pump & Machinery Corp. v. United States, 66 Ct.Cl. 230, 240 (1928) and Edward E. Gillen Co. v. United States, 88 Ct.Cl. 347, 368 (1939). Therefore, we hold that the contractor complied with the “Scheduling of Work” provision by giving as much notice as was reasonably required by that provision. After the contractor notified the project manager that the contractor’s reasonable efforts had not resulted in gaining entry to certain apartments, the Navy was under an implied obligation to provide such access so that the contractor could complete the contract within the time required by its terms. Consequently, if any part of the contractor’s work was thereafter delayed for an unreasonable period of time because of the Navy’s failure to provide access to the apartments, the contractor is, under the “Suspension of Work” clause, entitled to an increase in the cost of performing the contract. Chaney and James Constr. Co. v. United States, 421 F.2d 728, 190 Ct.Cl. 699 (1970). We have reached this conclusion on several grounds. We find that if their ordinary meaning is attributed to the words used in the “Scheduling of Work” provision, there is simply nothing in that specification or elsewhere which states that the" }, { "docid": "19146788", "title": "", "text": "pursuant to order of the court under Rule 54(b). The facts are stated in the opinion. Plaintiff’s motion for summary judgment was filed July 30, 1965, and defendant’s opposition thereto and its cross-motion on August 27, 1965, and thereafter plaintiff failed to file any response to defendant’s submissions. This is an nnreported decision which has been repeatedly followed and applied by the ASBCA. See John A. Johnson & Sons, ASBCA No. 4403, decided February 11, 1959, 59-1 BCA Decisions 8913, 8921, and Board decisions therein cited. A photostatic copy of the Guerin Bros, decision was obtained from the ASBCA and attached to the trial commissioner’s order (filed herein June 10, 1965) limiting procedings to a review of the administrative record pursuant to the Wunderlich Act. In Cannon Constr. Co. v. United States, 162 Ct. Cl. 94, 105, 319 F. 2d 173, 179 (1963), the court stated that the Suspension of Work clause (like that in subject case) converts a claim for delay damage “into a matter properly for determination and payment under and pursuant to the contract in the form of an equitable adjustment.” However, the contracting officer in effect did “order” suspension of work in that case by expressly granting plaintiff’s request therefor. In any event, the decisive reason for dismissal of plaintiff’s petition was application of the doctrine of accord and satisfaction. In T. C. Bateson Constr. Co. v. United States, 162 Ct. Cl. 145, 185, 187, 319 F. 2d 135, 158, 160 (1963), the court stated that Government action in taking steps which it knew would cause a resulting labor strike brought the contract Suspension of Work article (substantially like that in subject case) into operation, and that the contracting officer should have suspended the work, and an equitable adjustment should have been made under such article. The court held that defendant was not liable for breach of contract, but rather under the Suspension of Work article. Building accepted before all deficiencies were corrected." }, { "docid": "4226291", "title": "", "text": "recoverable even if a Suspension of Work clause had been omitted from the contract. A Suspension of Work provision was included, however, and under that clause the remainder of the cost increase, to the extent properly proved, can be recovered in this proceeding. There is no doubt, as the trial commissioner holds, that the work was in fact suspended and delayed for the Government’s convenience, and also that there was a significant change in design. It is immaterial, in this instance, whether or not the suspension and delay was due, in whole or in part, to the Government’s fault. There are occasions for the Suspension of Work clause to operate when the Government is at fault, as we recently noted (See Chaney & James Constr. Co. v. United States, 190 Ct. Cl. 699, 705-08, 421 F. 2d 728, 731-33 (1970)), but the clause can likewise be effective, as we have also held, when there is a suspension not due to the Government’s fault, dereliction, or responsibility. See T. C. Bateson Constr. Co. v. United States, 162 Ct. Cl. 145, 319 F. 2d 135 (1963); John A. Johnson & Sons v. United States, 180 Ct. Cl. 969 (1967). An instance of the latter category is a suspension and delay which lasts so long (regardless of the absence of government fault) that the contractor cannot reasonably be expected to bear the risk and costs of the disruption and delay. That is one type of suspension and delay “for 'an unreasonable length of time causing additional expense”, within the meaning of the clause. Depending on the circumstances, a delay due to a non-fault suspension by the Government can obviously be so protracted that it would be unreasonable to expect the contractor to shoulder the added expense himself. We think that in its terms and its purpose the Suspension of Work clause covers that situation, among others. The trial commissioner has properly concluded that that is the situation here. On this record, and with this project, it is impossible to hold other than that the delay-due-to-suspension of 419 days (considerably more than one year)" }, { "docid": "4226340", "title": "", "text": "opinion, to the extent that it occurred, is not apparent. Sometimes a subsurface or “Changed Condition” is encountered which does not require any change whatever in the original design. It merely renders the original design more costly, and the “Changed Conditions” article affords a vehicle for reimbursing those additional costs. In other cases, a subsurface or “Changed Condition” is encountered which results in frustration of the original design and therefore requires “Changes” therein. In those cases, the “Changes” clause becomes the more appropriate vehicle for adjusting the contract price by reason of the “Changed Condition.” Both clauses essentially call for “an equitable adjustment.” The contracting officer had previously allowed 334 calendar days. This Is more often described as a “constructive” suspension to distinguish It from one In which the contracting officer has Issued a formal written suspension order pursuant to the “Suspension of Work” article. Cf. Laburnum Constr. Corp. v. United States, 163 Ct. Cl. 339, 325 F. 2d 451 (1963). The contractor had claimed 419 days, from 20 April 1960 to 12 June 1961, as earlier Indicated. Note 13 supra. Lewis Constr. Co., ASBCA No. 5509, 60—2 BOA ¶ 2732. This case is not further developed nor distinguished in the board’s decision. As explained in Utah, supra, 384 U.S. 394 (1966). See also the recent decision in Chaney & James Constr. Co. v. United States, 190 Ct. Cl. 699, 421 F. 2d 728 (1970); T. C. Bateson Constr. Co. v. United States, 162 Ct. Cl. 145, 319 F. 2d 135 (1963); Wunderlich Contracting Co. v. United States, 173 Ct. Cl. 180, 351 F. 2d 956 (1965); Jack Clark, ASBCA No. 3672, 57-2 BCA ¶ 1402. In the Bateson case 162 Ct. Cl. at 185, 319 F. 2d at 158-59, the com-t stated: “At the outset, we are of the opinion that there was no breach of the contract by the Government. What the Government did with respect to putting civil service employees on the job was within the terms of the contract. This is not to say, however, that the Government could take refuge in the contract provisions and" }, { "docid": "23694249", "title": "", "text": "213 Ct.Cl. 192, 550 F.2d 26, 32 (1977); Cedar Lumber, Inc. v. United States, 5 Cl.Ct. 539, 549 (1984). The government is said to have violated the implied obligations where its action or inaction delays performance of the project thus increasing costs. Lewis-Nicholson, 550 F.2d 26. When this occurs the contractor may have a claim for damages. See id. at 26-27, 32. A. Suspension of Work Plaintiff did not specify exactly under which clause of the contract its delay claims were predicated but, with a few exceptions, presented proof and argued entitlement consonant with government-caused project delay to the critical path. There are, of course, two possible routes to successful prosecution of a delay claim. See Chaney & James Constr. Co. v. United States, 190 Ct.Cl. 699, 421 F.2d 728 (1970). The Suspension of Work clause of the contract, General Provision 9, provides in paragraph (b) that: If the performance of all or any part of the work is, for an unreasonable period of time, suspended, delayed, or interrupted by an act of the Contracting Officer ... an adjustment shall be made for any increase in the cost of performance of this contract ... necessarily caused by such unreasonable suspension, delay or interruption and the contract modified in writing accordingly. However, no adjustment shall be made under this clause for any suspension, delay, or interruption to the extent (1) that performance would have been so suspended, delayed, or interrupted by any other cause, including the fault or negligence of the Contractor, or (2) for which an equitable adjustment is provided for or excluded under any other provision of this contract. The Court of Federal Claims and the Court of Appeals for the Federal Circuit have held that under the Suspension of Work clause, the contractor may be awarded compensation for “government-caused delays of an unreasonable duration.” Beauchamp Construction Co. v. United States, 14 Cl.Ct. 430, 436-37 (1988) (citing John A. Johnson & Sons v. United States, 180 Ct.Cl. 969, 1967 WL 8810 (1967)); Chaney and James Construction Co. 421 F.2d at 731-32. The clause makes an adjustment unavailable, however, “to" }, { "docid": "2264393", "title": "", "text": "by the board falls far short of this standard, and the conclusion reached on the causation issue is in error as a matter of law. Where unreasonable delay is caused by the Government, the “Rice doctrine” does not preclude the recovery of damages flowing from that portion of the delay which is unreasonable. E.g., Gardner Displays Co. v. United States, 171 Ct. Cl. 497, 503-04, 346 F. 2d 585, 588-89 (1965) ; Laburnum Constr. Corp. v. United States, 163 Ct. Cl. 339, 325 F. 2d 451 (1963). See also United States v. Blair, 321 U.S. 730 (1944), where, even though the contract was performed on time, the contractor sought damages on the theory that he could have completed performance substantially earlier had he not been delayed. United States v. Howard P. Foley Co., 329 U.S. 64 (1946) ; United States v. Rice, 317 U.S. 61 (1942) ; H.E. Crook Co. v. United States, 270 U.S. 4 (1926) ; Chouteau v. United States, 95 U.S. 61 (1877). Davis, Judge, concurring: I join in the court’s opinion because I understand it to lay down and apply the same standard as has been used by the Boards of Contract Appeals in cases such as Ivey Bros. Construction Co., Inc., Eng. BCA No. 1764 (1960) (unreported decision); Gust K. Newberg Construction Co., Eng. BCA No. 2754, 67-2 BCA ¶ 6490, at 30,116-18; I. K. Construction Enterprises, Inc., ASBCA No. 10987, 67-1 BCA ¶ 6271, at 29,027; Eastridge Excavating Contractors, Inc., Eng. BCA No. 2683, 67-1 BCA ¶ 6379, at 29,534-35; A. L. Harding, Inc., DCAB No. PR-44, 65-2 BCA ¶ 5261, at 24,777, aff'd on reconsideration, 66-1 BCA ¶ 5463, at 25,590-91, and Power City Construction & Equipment, Inc., IBCA No. 490-4-65, 68-2 BCA ¶ 7126, at 33,024-26. That rule permits an equitable adjustment to cover increased costs which were the direct and necessary result of the change or changed conditions, where the condition or the change directly leads to disruption, extra work, or new procedures. The record makes it very clear that such is the situation here and that the Engineers Board could" }, { "docid": "4226342", "title": "", "text": "perform acts which it knew would delay and hinder the contractor in the performance of the work. In other words, in our opinion, the Govern- meat had the right to do any act within the terms of the contract, .but if said action caused plaintiff delay and damages it follows that under certain circumstances the Government is liable to the contractor therefor, * * * * * “Article GC — 11 of the contract was designed to incorporate and go beyond the principle that it is an implied provision of any contract that neither party will do anything to prevent performance thereof by the other party or' will hinder or delay him in his performance. George A. Fuller Co. v. United States, 108 Ct. Cl. 70, 94; Restatement of the Law of Contracts, sections 295, 315;. Williston on Contracts, sections 677, 1318; Chalender v. United States, 127 Ct. Cl. 557, 563; The Kehm Corp. v. United States, 119 Ct. Cl. 454, 470.” Note 14 supra. H. E. Crook Co. v. United States, 270 U.S. 4 (1926); Chouteau v. United States, 95 U.S. 61 (1877). See also Luria Bros. & Co. v. United States, 177 Ct. Cl. 676, 369 F. 2d 701 (1966). The Hardeman decision reviews several other court and board opinions on this point. See also I. K. Constr. Enterprises, ASBCA 10987, 67-1 BCA ¶ 6271. 41 Code of Federal Regulations § 1-16.901-32 reflects this revision for the Standard (Supply Contract) Form 32, effective with the June 1964 edition. The revision in the Standard (Construction Contract) Form 23A is published in 32 Federal Register 16268, et seq. In an appendix to the latter entitled “Background and Nature of Revisions to Contract Clauses,” it is stated: ***** “a. For many years problems have been encountered in the administration of these clauses. A study of the problems was initiated by 6SA on June 18, 1964. The Study Group (which included the representatives of major construction contracting agencies) submitted a report on March 1,1966, in which it set forth basic objectives, analyzed administrative difficulties, and recommended revised contract clauses. Included in the" }, { "docid": "12893251", "title": "", "text": "No. 97-164, 96 Stat. 25, are not relevant to resolution of the, issues raised in this case. . We consider entirely without merit appellant’s contention that § 1-8.502-2 does not apply because this case really involves a termination for default. The parties’ agreement, described above, settled the question. . Item 5 of the format for § 1-8.502-2 claims requires itemization. See also 41 C.F.R. § 1-8.307-l(c) (general requirement that a settlement proposal be in “reasonable detail”). . 41 U.S.C. §§ 321-322 (1976) (Wunderlich Act). The standard of review is: “ * * * any such decision shall be final and conclusive unless the same is fraudulent or capricious or arbitrary or so grossly erroneous as necessarily to imply bad faith, or is not supported by substantial evidence.” 41 U.S.C. § 321. The Court of Claims was limited to the record before the board. United States v. Cario Bianchi & Co., 373 U.S. 709, 714, 83 S.Ct. 1409, 1413, 10 L.Ed.2d 652 (1963). . United States v. Utah Constr. & Mining Co., 384 U.S. 394, 412, 86 S.Ct. 1545, 1555, 16 L.Ed.2d 642 (1966). . Tuttle/White Constructors, Inc. v. United States, 656 F.2d 644, 647-48 (Ct.Cl.1981). . See Tuttle/White Constructors, 656 F.2d at 647. The interest clause of Essex’s contract provided that interest would accrue “from the date the Contractor furnishes to the Contracting Officer his written appeal under the Disputes clause.” This would have been March 14, 1979. . Even though the contracting officer first received the claim prior to March 1, 1979, it has been settled that interest under the act may not be recovered for periods of time prior to its effective date. See Brookfield Constr. Co. v. United States, 661 F.2d 159, 162-66 (Ct.Cl.1981). . Fidelity Constr. Co. v. United States, 700 F.2d 1379, 1382-1385 (C.A.Fed.1983). . Id. . Paul E. Lehman, Inc. v. United States, 673 F.2d 352, 355 (Ct.Cl.1982). . Id. (citing with approval board decisions holding the same with respect to board review). See also Skelly & Loy v. United States, 685 F.2d 414, 418 & n. 12 (Ct.Cl.1982). . Skelly & Loy, 685" }, { "docid": "22821260", "title": "", "text": "to seek clarification. Jefferson Constr. Co. v. United States, 364 F.2d 420, 176 Ct.Cl. 1363 (1966), cert. denied, 386 U.S. 914, 87 S.Ct. 865, 17 L.Ed.2d 786 (1967). For example, in Woodcrest Constr. Co. v. United States, 408 F.2d 406, 187 Ct.Cl. 249 (1969), cert. denied, 398 U.S. 958, 90 S.Ct. 2164, 26 L.Ed.2d 542 (1970), one contract drawing showed an existing communications manhole while a related drawing indicated that the same manhole was to be constructed by the contractor. Id. 408 F.2d at 412. The court considered this discrepancy obvious and held that the contractor should have asked for clarification. Id. 408 F.2d at 412-13. However, it is not enough under the duty to inquire that a contractor merely make an initial inquiry. Beacon Constr. Co. v. United States, 314 F.2d 501, 504, 161 Ct.Cl. 1 (1963) (holding that duty to inquire requires the contractor to call attention to obvious contract omissions and make certain they were deliberate). Also instructive on this point is Construction Service Co., ASBCA No. 4998, 59-1 BCA (CCH) ¶ 2077 at 8838, where a contractor requested clarification of a contract but received an addendum which did not alleviate the confusion. The board found that the duty to inquire had not been met. “If after receiving the addendum, the intended meaning was still not clear to appellant, it should have requested a further clarification.” Id. at 8846-47. This holding was reiterated in Southside Plumbing Co., ASBCA No. 8120, 64 BCA (CCH) If 4314 at 20,860. In that case, a contractor became aware of an ambiguity prior to bidding, sought and received an addendum that was expected to furnish clarification and later realized that the addendum failed to resolve the ambiguity. Without seeking further clarification, the contractor bid on the basis of its own interpretation, which, under the circumstances, was more favorable to the contractor. The board held that the contractor had not met its burden under the duty to inquire. “Here, the appellant not only recognized the ambiguity but made inquiry. This circumstance, in our opinion, brings the case within the principle in Construction Service" }, { "docid": "23694251", "title": "", "text": "the extent that other causes, attributable to said contractor, would have simultaneously suspended, delayed, or interrupted contract performance.” Beauchamp, 14 Cl.Ct. at 437. The delay need not be a Government ordered work stoppage to be compensable. Any unreasonable delay attributable solely and directly to the Government will be considered a constructive suspension of work for purposes of the clause. John A. Johnson & Sons, 180 Ct.Cl. at 984-85; see Wunderlich Contracting Co. v. United States, 173 Ct.Cl. 180, 351 F.2d 956, 967-68 (1965). Contract completion need not be delayed. Delay to part of the performance may result in compensation. See Chaney and James Constr. Co., 421 F.2d at 733. To recover, the contractor must show: (1) the delay is of an “unreasonable length of time,” Wunderlich, 351 F.2d at 967 (citing River Construction Corp. v. United States, 159 Ct.Cl. 254, 270, 1962 WL 9302 (1962)); F.H. McGraw & Co. v. United States, 131 Ct.Cl. 501, 506-07, 130 F.Supp. 394 (1955); (2) the delay was proximately caused by the Governments actions, id. (citing River Construction, 159 Ct.Cl. at 270; Laburnum Construction Corp. v. United States, 163 Ct.Cl. 339, 325 F.2d 451 (1963); J.A. Ross & Co. v. United States, 126 Ct.Cl. 323, 331-34, 115 F.Supp. 187 (1953)); and (3) the delay resulted in some injury to the contractor, see Wunderlich at 968 (citing River Construction, 159 Ct.Cl. 254; Addison Miller, Inc. v. United States, 108 Ct.Cl. 513, 70 F.Supp. 893, cert. denied, 332 U.S. 836, 68 S.Ct. 217, 92 L.Ed. 408 (1947); J.D. Hedin Construction Co. v. United States, 171 Ct.Cl. 70, 347 F.2d 235, 246-47). Plaintiff must show that defendant was the “sole proximate cause” of the delay, and that no concurrent cause would have equally delayed the contract regardless of the Government’s action or inaction. Merritt-Chapman & Scott Corp. v. United States, 208 Ct.Cl. 639, 528 F.2d 1392, 1397 (1976). This is not to say that where there are concurrent delays, a contractor may not attempt to prove the effect of government caused delay as distinct from others. Rather, “[t]he general rule is that ‘[wjhere both parties contribute to" }, { "docid": "4226292", "title": "", "text": "162 Ct. Cl. 145, 319 F. 2d 135 (1963); John A. Johnson & Sons v. United States, 180 Ct. Cl. 969 (1967). An instance of the latter category is a suspension and delay which lasts so long (regardless of the absence of government fault) that the contractor cannot reasonably be expected to bear the risk and costs of the disruption and delay. That is one type of suspension and delay “for 'an unreasonable length of time causing additional expense”, within the meaning of the clause. Depending on the circumstances, a delay due to a non-fault suspension by the Government can obviously be so protracted that it would be unreasonable to expect the contractor to shoulder the added expense himself. We think that in its terms and its purpose the Suspension of Work clause covers that situation, among others. The trial commissioner has properly concluded that that is the situation here. On this record, and with this project, it is impossible to hold other than that the delay-due-to-suspension of 419 days (considerably more than one year) was “for an unreasonable length of time.” The contractor, informed by the Suspension of Work article that it would receive compensation for unreasonable delays due to a non-fault suspension, would not expect (and rightly so) to bear the costs of a delay of this character and magnitude. The delay was therefore “unreasonable”. There is no finding by the Board, and defendant does not claim, that some lesser part of this 419 days would have been a “reasonable” delay (cf. Chaney & James Constr. Co. v. United States, 190 Ct. Cl. 699, 712-13, 421 F. 2d 728, 735-36 (1970)). In any event, the circumstances of the case would preclude a finding that any delay after April 20, 1960 would have been a “reasonable” one for which plaintiff should bear the extra expense. The court understands Commissioner Spector’s opinion to be fully consonant with this analysis of the case, and therefore adopts his opinion (in the light of and as supplemented by the foregoing discussion) as the basis for judgment. Accordingly, plaintiff’s motion for summary judgment is" }, { "docid": "14430026", "title": "", "text": "Bianchi & Co., 373 U.S. 709, 83 S.Ct. 1409, 10 L.Ed.2d 652 (1963), the Supreme Court again reversed the Court of Claims and held that even under the Wunderlich Act, absent fraud, the Court of Claims was bound by the findings of fact made by an agency board on issues subject to the contract’s disputes clause. Id. at 714, 83 S.Ct. at 1413. This holding required the Court of Claims to remand cases back to the agency board whenever additional findings of fact became necessary. The Court of Claims addressed the issue of de novo review again in two other cases: Anthony Grace & Sons v. United States, 345 F.2d 808, 170 Ct.Cl. 688 (1965), and Utah Constr. & Mining Co. v. United States, 339 F.2d 606, 168 Ct.Cl. 522 (1964). The court held that under the Wunderlich Act, the findings of the contracting officer or agency board were not binding if the dispute alleged claims, such as breach of contract, which did not arise under the contract’s disputes clause. Id. 339 F.2d at 609. It was at about this time that the J.D. Hedin case was heard in the Court of Claims. In J.D. Hedin the contractor alleged that the government had changed the contract specifications and breached the contract by delaying the project’s completion. The trial commissioner conducted a de novo hearing and made findings and conclusions based on evidence produced at trial. On review the Court of Claims ruled, in banc, that the de novo hearing was proper because the government had waived any right it may have had to protest a de novo hearing per the Supreme Court’s holding in Bianchi by failing to make a timely objection. Meanwhile, the Supreme Court granted certiorari in both Anthony Grace and Utah. See United States v. Anthony Grace & Sons, 384 U.S. 424, 86 S.Ct. 1539, 16 L.Ed.2d 662 (1966); United States v. Utah Constr. & Mining Co., 384 U.S. 394, 86 S.Ct. 1545, 16 L.Ed.2d 642 (1966). In Anthony Grace, the Court held that in most cases the Court of Claims could not conduct de novo hearings" } ]

[ { "docid": "23174981", "title": "", "text": "trade, was disastrous to the defendants. There was almost a complete boycott of their products. To hold that there was no liability for damages caused by this conduct, though lawful in itself, would permit a monopolizer to smother every potential competitor with litigation before it had an opportunity to be otherwise caught in its tentacles and leave the competitor without a remedy. Kobe relies strongly on the cases of Virtue v. Creamery Package Co., 227 U.S. 8, 33 S.Ct. 202, 57 L.Ed. 393; International Visible Systems Corp. v. Remington-Rand Inc., 6 Cir., 65 F.2d 540; and Straus v. Victor Talking Machine Co., 2 Cir., 297 F. 791. The Creamery Package Co. and the Remington-Rand cases do not hold that actions which were designed to further an existing monopoly could not be the basis for damages in an antitrust case. These actions were considered as single and isolated acts and were not preceded by a long history of unlawful monopolization. We are unable to agree with statements to the contrary in the Straus case. The right of those who conduct their businesses in a lawful manner and who do not misuse their patent rights to bring infringement suits and to notify others of the consequences of infringement will in no way be impaired by this ruling. Considering the narrow bounds to which we are confined on review of the issues of fact in antitrust cases, we are unable to say that there is no substantial evidence to sustain the trial court’s finding that the litigation and the conduct of Kobe subsequent thereto was for the purpose of maintaining its monopolistic purposes, or that it is clearly erroneous. United States v. Oregon State Medical Society, supra; Besser Mfg. Co. v. United States, 343 U.S. 444, 72 S.Ct. 838. The trial court found that the unlawful acts of Kobe induced a continual boycott of the Dempsey product and prevented sales by Dempsey and Specialty and caused substantial damage. In questioning the sufficiency of the evidence to sustain the award, two basic principles of the law of damages are presented: 1, the fact of" } ]

[ { "docid": "4927515", "title": "", "text": "products do not infringe its patents, but nevertheless is employing its patent as an economic force to intimidate its competition, with the specific intent of monopolizing the entire field of FPC coatings. Count 3 is based on Illinois laws of unfair competition. It contains similar allegations that Mirror’s threats were made in bad faith in an effort to injure Chromium’s business. The institution of an ill-founded patent enforcement scheme can constitute an antitrust violation if it. is part of a purposeful drive to eliminate competition and to monopolize an industry. Kobe, Inc. v. Dempsey Pump Co., 198 F.2d 416, 424-25 (10th Cir. 1952); Dairy Foods, Inc. v. Dairy Maid Products Corp., 297 F.2d 805, 809 (7th Cir. 1961). The principle is based on the view that the judicial system should not be a vehicle for acquiring, maintaining, or furthering an unlawful monopoly. See California Motor Transport v. Trucking Unlimited, 404 U.S. 508, 92 S.Ct. 609, 30 L.Ed.2d 642 (1972). The mere coincidence of an antitrust violation and a patent infringement suit is not enough. The suit must be in furtherance of and an integral part of the plan to violate the antitrust laws. Rex Chainbelt, Inc. v. Harco Products, Inc., 512 F.2d 993, 1005-06 (9th Cir. 1975). It is no defense that the defendant brought the infringement action with a good faith belief that its patents were infringed. Kobe, supra at 424; Handguards, Inc. v. Johnson & Johnson, 413 F.Supp. 921, 924 (N.D.Cal.1975) ; but see Bolt Associates, Inc. v. Rix Industries, 1973 Trade Cas. ¶ 74,474 (N.D.Cal.1973). The fact that a patent is valid and infringed will not preclude the finding of an antitrust violation. Sulmeyer v. Seven-Up Co., 411 F.Supp. 635, 644 (S.D.N.Y.1976) . However, the defendant must have a bad faith, predatory intent to attain an anticompetitive end, as opposed to a purely defensive motivation to protect its patent interests. Handguards, supra at 924-25; Rex Chainbelt, supra at 1005. “The willful acquisition of illegal exclusionary power in the relevant market can be properly inferred from the accumulation of patents for anticompetitive purposes, .the bring of infringement actions" }, { "docid": "11404225", "title": "", "text": "for the lawful purpose of enforcing Os-ten’s patent. I find that defendant reasonably believed that plaintiff might have been infringing his patent rights notwithstanding the possible illegality of defendant’s agreement with R.O.W. and Formetal. Moreover, there is no history of monopolization on the part of the patentee preceding the patent litigation as appeared in Kobe and Clapper. In the instant case, competition in the removable sash industry appears to be vigorous and there is no evidence that defendant gained an unlawful position of dominance in the relevant market. Plaintiff cites Dairy Foods, Inc. v. Dairy Maid Products Co-op, 297 F.2d 805 (7th Cir., 1961), a patent infringement action in which the defendant asserted a counterclaim to recover treble damages from plaintiff and two additional counterdefendants for injury caused by antitrust violations. The only injury alleged there was the lost time and money expended in defending the suit and investigating the patent. The Seventh Circuit held that a cause of action for treble damages was stated. This case may be distinguished from the instant case in that the court, in Dairy Foods, on motion to dismiss, assumed that the patentee brought suit to further unlawful monopolistic activities since defendant in that case alleged in his counterclaim that he was forced either to cease competition, to compete under a discriminatory license or to defend the patent litigation. Defendant’s business would have been injured if any one of these assertions were established. In contrast to Dairy Foods, the issue in the instant case is presented after all of the proofs have been submitted. I find that the evidence fails to •establish that the suits against Muench and Malta were brought in furtherance -of an unlawful conspiracy. In addition, the court finds from the apparent similarity of the patent in suit and the accused device that defendants were not guilty of bad faith, or inequitable or unconscionable conduct in the instigation of the action against Muench •or in the counterclaim in this action. Even assuming that the proofs •established antitrust violations sufficient to invoke the rule of Kobe, Clapper and Dairy Foods, the court" }, { "docid": "2804559", "title": "", "text": "1395 (8 Cir., 1970). The second time around the trial court found overwhelming evidence of fraud on the Patent Office and the elements of a § 2 Sherman Act violation. 347 F. Supp. 376. In Acme the District Court found that the plaintiff had a dominant position in the relevant market. The Court of Appeals reversed Acme II on the ground “that the overall proof [was] grossly deficient in showing the extent of the relevant market and plaintiff’s domination of it.” 484 F.2d 1244. The District Court considered the only issue whether or not the defendant suffered damage by reason of the monopolistic practices of the plaintiff. In that connection the Court said attorney fees for defending an infringement brought as a part of an illegal attempt to monopolize and to restrain trade “are properly assessible damages in an antitrust action for such attempt to monopolize,” citing American Infra-Red Radiant Co. v. Lambert Industries, Inc., 360 F.2d 977 (8 Cir., 1966). The defendant in Acme claimed substantial loss of sales due to the attempt to monopolize by the plaintiff. However, it was not proved that a decline in defendant’s sales was due to the infringement suit. Acme is a case in which attorney fees in defending a patent infringement suit were the only “injury to business or property” proven in an antitrust counterclaim to a patent infringement suit defended on the ground that the patent was fraudulently procured. In reversing, the Court of Appeals for the Eighth Circuit made no mention of the District Court’s holding that attorney fees were assessible as damages. In view of its finding that there was no proof of the relevant market and dominance, the Court did not pass on the issue made by defendant’s claim that the District Court erred in not awarding damages for lost sales. And, as to attorney fees, all the Court said was: “. . . The finding that American Alloys is entitled to attorneys’ fees under the Clayton Act is reversed; defendant is allowed attorneys’ fees under 35 U.S.C. § 285 for the defense of the infringement suit.” 484" }, { "docid": "904046", "title": "", "text": "monopolistic position are irrelevant.” RCA relies on such cases as Osborn v. Sinclair Refining Co., 324 F.2d 566 (4th Cir., 1963); Dairy Foods Incorporated v. Dairy Maid Products Corp., 297 F.2d 805 (7th Cir., 1961); Jones Knitting Corp. v. Morgan, 361 F.2d 451 (3rd Cir., 1966); Perma Life Mufflers v. Int’l Parts Corp., 392 U.S. 134, 88 S.Ct. 1981, 20 L.Ed.2d 982 (1968); Congress Building Corp. v. Loew’s Inc., 246 F.2d 587 (7th Cir., 1957); Hoopes v. Union Oil Co. of California, 374 F.2d 480 (9th Cir., 1967); So. Carolina Council of Milk Producers, Inc. v. Newton, 360 F.2d 414 (4th Cir.), cert. denied, 385 U.S. 934, 87 S.Ct. 295, 17 L.Ed.2d 215 (1966); Sanitary Milk Producers v. Bergjans Farm Dairy, Inc., 368 F.2d 679 (8th Cir., 1966); and Standard Oil Co. of Calif. v. Perkins, 396 F.2d 809 (9th Cir., 1967). As is to be expected, each of these cases presented its own particular set of facts upon which decision had to be based. Osborn involved the cancellation of Osborn’s lease and a refusal by. Sinclair to deal because Osborn refused to abide by an unlawful arrangement between Sinclair and its dealers (primarily tie-in demands). Dairy Foods proeedurally was quite analogous — a suit for patent infringement, counterclaims for a declaration as to patent validity, and a treble-damage antitrust claim. There were allegations of the unlawful pooling of patents by the plaintiff and others, coercion to accept illegal licenses under threat of infringement suits, and the use of such suits to place Dairy Maid under “conspiratorial compulsion.” Jones Knitting was fundamentally a patent infringement suit, but the plaintiffs had formed a “group” not only to challenge the validity of the Morgan patent, but also to engage in a “group boycott” in violation of § 1 of the Sherman Act. When the Court of Appeals reversed a determination of patent invalidity, naturally the remand required an assessment of such damages as resulted from the boycott. Perma Life Mufflers, as said in the majority (Mr. Justice Black) opinion, presented as the “principal question” whether plaintiffs were barred by the doctrine of" }, { "docid": "3360095", "title": "", "text": "have suffered injury in their “franchise competition” with the utility, the municipalities may be able to demonstrate, for example, that the 9% rate of interest fails to make them whole for the loss of the use of the monies which they were overcharged, or that the excessively high wholesale rates forced them to forego altogether or to secure less favorable terms for capital improvements to expand their municipal distribution facilities or to replace obsolete equipment, etc. Insofar as the municipalities have been injured in their ability to compete directly with the utility for the provision of service to retail customers in areas of overlapping service, the municipalities may be able to show a loss of customers, revenue and profits. Our discussion here is not meant to be exhaustive, but merely to illustrate that the municipalities on remand must introduce proof of damages which were caused by the utility’s monopolistic conduct. We also find that the municipalities are entitled to recover, as part of their antitrust damages, the expenses they incurred in litigating before the commission in their attempt to prevent the utility’s withdrawal of their wholesale supply as had been threatened. The litigation expenses sought are not for opposing utility rate applications. In the context of this antitrust violation, we do not believe that to allow litigation expenses to the municipalities for efforts to counteract the threats and to protect their municipal systems runs afoul of Noerr-Pennington as claimed by the utility. It was not the utility petitioning for its own lawful purposes. It was the municipalities petitioning to prevent the utility’s allegedly unlawful conduct. Support for our award of these litigation expenses as a portion of antitrust damages may be found in this court’s earlier decisions awarding litigation expenses undertaken in defense of patent infringement litigation as an element of antitrust damages. In Dairy Foods, Inc. v. Dairy Maid Products Cooperative, 297 F.2d 805, 808-09 (7th Cir. 1961), we held that, where a patent “infringement suit was brought as part of and in furtherance of a combination and conspiracy which violates the antitrust laws and results in injury” such" }, { "docid": "20710414", "title": "", "text": "857-58 (1st Cir.1985) (permitting recovery of attorney fees for defending bad faith assertion of trade secrets); Handgards, Inc. v. Ethicon, Inc., 743 F.2d 1282, 1295-98 (9th Cir.1984) (permitting recovery of attorney fees for defending bad faith prosecution of patent infringement suit); Handgards, Inc. v. Ethicon, Inc., 601 F.2d 986, 996-97 (9th Cir.1979) (same); American Infra-Red Radiant Co. v. Lambert Indus., 360 F.2d 977, 996-97 (8th Cir.1966) (permitting recovery of attorney fees when a patent suit is in furtherance of an illegal monopolistic scheme, though the suit itself may not be sham litigation); Dairy Foods Inc. v. Dairy Maid Prods. Coop., 297 F.2d 805, 808-10 (7th Cir.1961) (same); Clapper v. Original Tractor Cab Co., 270 F.2d 616, 623-24 (7th Cir.1959) (same); Kobe, Inc. v. Dempsey Pump Co., 198 F.2d 416, 424-25 (10th Cir.1952) (same). 3M criticizes TransWeb’s reliance on cases such as Handgards that did not deal with Walker Process violations in particular. According to 3M, because some cases relied on by TransWeb dealt with sham litigation, the holdings are inapposite here. It is true that we have held that sham litigation and Walker Process are distinct avenues by which a party can lose Noerr-Pennington immunity. See Nobelpharma, 141 F.3d at 1071-72. In Nobelpharma, we noted that the Supreme Court had declined to explain how sham litigation and Walker Process liability relate to one another, so we declined to merge the two doctrines. See id. (discussing Prof'l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 61 n. 6, 113 S.Ct. 1920, 123 L.Ed.2d 611 (1993) (“PRE”)). We reasoned that the objective baselessness and subjective bad faith requirements for sham litigation laid out in PRE are one way that a party can lose antitrust immunity, while the “very specific conduct that is clearly reprehensible” and defined in Walker Process is another way. Id. at 1071. But that distinction does not make the regional circuit cases dealing with sham litigation or other antitrust violations unin formative to the present issue of damages. While there are distinctions between the various types of antitrust violations, the logic underlying the award of" }, { "docid": "3360096", "title": "", "text": "in their attempt to prevent the utility’s withdrawal of their wholesale supply as had been threatened. The litigation expenses sought are not for opposing utility rate applications. In the context of this antitrust violation, we do not believe that to allow litigation expenses to the municipalities for efforts to counteract the threats and to protect their municipal systems runs afoul of Noerr-Pennington as claimed by the utility. It was not the utility petitioning for its own lawful purposes. It was the municipalities petitioning to prevent the utility’s allegedly unlawful conduct. Support for our award of these litigation expenses as a portion of antitrust damages may be found in this court’s earlier decisions awarding litigation expenses undertaken in defense of patent infringement litigation as an element of antitrust damages. In Dairy Foods, Inc. v. Dairy Maid Products Cooperative, 297 F.2d 805, 808-09 (7th Cir. 1961), we held that, where a patent “infringement suit was brought as part of and in furtherance of a combination and conspiracy which violates the antitrust laws and results in injury” such that the defendant was put to the choice of (1) foregoing use of the patented device, (2) accepting a discriminatory and restrictive license which increased the cost of production, or (3) defending expensive patent litigation, the cost and expense of defending the suit was a component of antitrust damages which could be trebled. See also Locklin v. DayGlo Color Corp., 429 F.2d 873, 878 & n. 13 (7th Cir. 1970), cert. denied, 400 U.S. 1020, 91 S.Ct. 582, 27 L.Ed.2d 632 (1971); Hazeltine Research, Inc. v. Zenith Radio Corp., Inc., 388 F.2d 25, 35 (7th Cir. 1967), aff’d in part and rev’d in part, 395 U.S. 100, 89 S.Ct. 1562, 23 L.Ed.2d 129 (1969). Similarly, in this case, the trial court found that the municipalities had no choice but to file an administrative action before the commission to prevent the loss of their wholesale power source and to establish their right to equal treatment with the utility’s retail customers whom the utility had indicated would receive preferences. Under these circumstances, we find no merit in" }, { "docid": "11404224", "title": "", "text": "and attorney fees incurred by it as a result of the alleged conspiracy. Mr. Boden testified that Muench Sash & Door Co. was a distributor of Malta products and that Malta was called upon by Muench to assume all legal fees incurred by Muench in defending against patent litigation brought by defendants. There is precedent for regarding attorney fees incident to defending a patent infringement action as an element of treble damages when a patentee enforces his patent rights for the purpose of furthering unlawful monopolistic activities. Kobe, Inc. v. Dempsey Pump Co., 198 F.2d 416, 425 (10th Cir., 1952); Clapper v. Original Tractor Cab Co., 270 F.2d 616, 624 (7th Cir., 1959) cert. den. 361 U.S. 967, 80 S.Ct. 588, 4 L.Ed.2d 547 (1960). But where a patentee enforces his rights for apparently lawful purposes the cost of defense does not become an element of damages under the Clayton Act. Straus v. Victor Talking Mach. Co., 297 F. 791, (2nd Cir., 1924). In the instant case the suits against Meunch and Malta were brought for the lawful purpose of enforcing Os-ten’s patent. I find that defendant reasonably believed that plaintiff might have been infringing his patent rights notwithstanding the possible illegality of defendant’s agreement with R.O.W. and Formetal. Moreover, there is no history of monopolization on the part of the patentee preceding the patent litigation as appeared in Kobe and Clapper. In the instant case, competition in the removable sash industry appears to be vigorous and there is no evidence that defendant gained an unlawful position of dominance in the relevant market. Plaintiff cites Dairy Foods, Inc. v. Dairy Maid Products Co-op, 297 F.2d 805 (7th Cir., 1961), a patent infringement action in which the defendant asserted a counterclaim to recover treble damages from plaintiff and two additional counterdefendants for injury caused by antitrust violations. The only injury alleged there was the lost time and money expended in defending the suit and investigating the patent. The Seventh Circuit held that a cause of action for treble damages was stated. This case may be distinguished from the instant case in" }, { "docid": "20710413", "title": "", "text": "the relevant products but caused TransWeb to suffer a very real injury of its own, the cost of defending the suit. Both the lost profits suffered under option one and the attorney fees suffered under option two were attributable to what made 3M’s behavior unlawful, i.e., bringing the lawsuit on a fraudulently-obtained patent in pursuit of a monopoly. Therefore, the injury suffered by TransWeb under either option qualifies as antitrust injury and thus can form the basis of damages under § 4. We are further persuaded to our conclusion by the multitude of regional circuit precedents finding that attorney fees incurred defending an anticompetitive lawsuit can form the basis for antitrust damages. See Premier Elec. Constr. Co. v. Nat’l Elec. Contractors Ass’n, 814 F.2d 358, 371-76 (7th Cir.1987) (permitting recovery of attorney fees for defending anti-competitive cartel suit even though sham litigation was not present); Rickards v. Canine Eye Registration Found., 783 F.2d 1329, 1334-35 (9th Cir.1986) (permitting recovery of attorney fees for defense of sham litigation); CVD, Inc. v. Raytheon Co., 769 F.2d 842, 857-58 (1st Cir.1985) (permitting recovery of attorney fees for defending bad faith assertion of trade secrets); Handgards, Inc. v. Ethicon, Inc., 743 F.2d 1282, 1295-98 (9th Cir.1984) (permitting recovery of attorney fees for defending bad faith prosecution of patent infringement suit); Handgards, Inc. v. Ethicon, Inc., 601 F.2d 986, 996-97 (9th Cir.1979) (same); American Infra-Red Radiant Co. v. Lambert Indus., 360 F.2d 977, 996-97 (8th Cir.1966) (permitting recovery of attorney fees when a patent suit is in furtherance of an illegal monopolistic scheme, though the suit itself may not be sham litigation); Dairy Foods Inc. v. Dairy Maid Prods. Coop., 297 F.2d 805, 808-10 (7th Cir.1961) (same); Clapper v. Original Tractor Cab Co., 270 F.2d 616, 623-24 (7th Cir.1959) (same); Kobe, Inc. v. Dempsey Pump Co., 198 F.2d 416, 424-25 (10th Cir.1952) (same). 3M criticizes TransWeb’s reliance on cases such as Handgards that did not deal with Walker Process violations in particular. According to 3M, because some cases relied on by TransWeb dealt with sham litigation, the holdings are inapposite here. It is true that" }, { "docid": "23459787", "title": "", "text": "an infringement suit is brought as part of and in furtherance of a combination and conspiracy * * Dairy Foods, Incorporated v. Dairy Maid Products Cooperative, 297 F.2d 805, 809 (7 Cir. 1961). Therefore, whenever the patent litigation is initiated pursuant to a lawful purpose and there is no causal connection between the bringing of the action and the illegal conduct, the cost of the defense of the suit cannot become an element of damage which is tripled under the Clayton Act. See, Malta Manufacturing Company v. Osten, 215 F.Supp. 114 (E.D.Mich.1963). Applying this law to the facts of this case, there is no indication that the initiation of this suit was inspired by any monopolistic conspiracy or was a veiled attempt to unjustly drive plaintiffs’ competitors to the wall. In fact, all indications point out that this suit was brought with clean hands in a good faith attempt to protect plaintiffs’ patent rights, which they were fully entitled to do under the patent law. Indeed, the trial court specifically found that plaintiffs had been guilty of no patent misuse in the initiation of this suit. Further, it is our belief that this litigation was not precipitated by any monopolistic activity, but rather the dispute over the validity and infringement of these patents would have existed regardless of the particulars of the licensing agreement between the individual plaintiffs. The defense of this suit is, therefore, an expense attributable, not to the allegedly illegal contracts but solely to a dispute over the two patents. There being no proof of any causal connection between the patent litigation and the allegedly illegal contracts, and it not being shown that the suit was initiated in furtherance of any monopolistic scheme or conspiracy, we believe that defendants have failed to prove these litigation expenses are anti-trust damages. In addition we recognize the fact there is authority that no patent litigation expense may be recovered as treble damages in an anti-trust counterclaim. The leading case taking this approach is Straus v. Victor Talking Machine Co., 297 F. 791 (2 Cir. 1924) and cited with approval by" }, { "docid": "2804568", "title": "", "text": "part of the illegal scheme, it is conceivable that its defense could be considered as an ‘injury’ under the anti-trust statutes. This, in fact, is exactly what defendants’ cases say. Patent litigation expense may only ]ae considered in antitrust counterclaims, ‘Where an infringement suit is brought as part of and in furtherance of a combination and conspiracy * * *.’ Dairy Foods, Incorporated v. Dairy Maid Products Cooperative, 297 F.2d 805, 809 (7 Cir. 1961). Therefore, whenever the patent litigation is initiated pursuant to a lawful purpose and there is no causal connection between the bringing of the action and the illegal conduct, the cost of the defense of the suit cannot become an element of damage which is tripled under the Clayton Act. See, Malta Manufacturing Company v. Osten, 215 F.Supp. 114 (E.D.Mich.1963).” In the case before us, as we have said earlier, we have concluded that there was a “causal connection” between the bringing of the action and plaintiff’s antitrust activities. That concludes the discussion of the pertinent cases. The application of the principles enunciated therein to the facts of this case led to our conclusion stated at the outset of this discussion, namely, that attorney fees expended up to the time the reissue claims were abandoned by K&T were incurred because of the violation of § 2 of the Sherman Act (15 U.S.C. § 2), i. e., there is impact or injury to business or property in the circumstances of this case. We find there is a causal connection between the infringement suit and the antitrust activities. We conclude, however, such “antitrust activities” did not include a violation of § 7 of the Clayton Act (15 U.S.C. § 18). On the contrary, like the Court in Glidings & Lewis we were satisfied with K&T’s explanation of the acquisition by K&T of the Morgan patent and also its licensing practices. In Kearney & Trecker Corp. v. Giddings & Lewis, Inc., supra, at 600, the Court of Appeals reversed the District Court and remanded the case to the District Court with directions not only to enter judgment in favor" }, { "docid": "2804564", "title": "", "text": ". . Acts done to give effect to the conspiracy may be of themselves wholly innocent acts. Yet, if they are part of the sum of the acts which are relied upon to effectuate the conspiracy which the statute forbids, they come within its prohibition.” In Clapper v. Original Tractor Cab Company, 270 F.2d 616 (7 Cir., 1969), the Court held that a sum awarded for the defense of a patent infringement case as “exceptional” should have been included in the compensatory damages sustained by the defendant as the result of the antitrust violation which was the subject of a counterclaim. In Clapper there were other items of damage besides attorney fees, namely, loss of sales, advertising costs rendered -useless, expenses incurred in finance negotiation, and costs from a forced shut down, forced stoppage of production. Nevertheless, the cost of defending the litigation which was part of the monopo-/listic scheme was assessed as damages to be trebled. We fail to see any reason why such attorney fees and costs of defense prosecuted as part of a monopolistic scheme should be nonassessible because that is the only item of damage. We likewise consider Kobe, supra, as authority for the recovery threefold of the costs and expense of defending the infringement suit before the reissue claims were dropped. Next we note that as to Dairy Foods, the Court in Malta, supra, at 122, noted that on a motion to dismiss the Court assumed that the patentee brought suit for further unlawful monopolistic activities since the defendant in that case alleged in his counterclaim that he was forced either to cease competition, to compete under a discriminatory license, or to defend the patent litigation. It was in that context that the Court held that the defendant against whom a patent infringement suit is brought as part of and in furtherance of combination and conspiracy violating antitrust laws may recover threefold the costs and expense of defense, citing Clapper and Kobe, supra. The Court in Dairy Foods said: “. . . each of these cases is authority for the recovery of threefold the cost" }, { "docid": "2804565", "title": "", "text": "a monopolistic scheme should be nonassessible because that is the only item of damage. We likewise consider Kobe, supra, as authority for the recovery threefold of the costs and expense of defending the infringement suit before the reissue claims were dropped. Next we note that as to Dairy Foods, the Court in Malta, supra, at 122, noted that on a motion to dismiss the Court assumed that the patentee brought suit for further unlawful monopolistic activities since the defendant in that case alleged in his counterclaim that he was forced either to cease competition, to compete under a discriminatory license, or to defend the patent litigation. It was in that context that the Court held that the defendant against whom a patent infringement suit is brought as part of and in furtherance of combination and conspiracy violating antitrust laws may recover threefold the costs and expense of defense, citing Clapper and Kobe, supra. The Court in Dairy Foods said: “. . . each of these cases is authority for the recovery of threefold the cost and expense of defending such an infringement suit.” 297 F.2d at 809. The Court also held that the counterclaim was not premature, saying: “. . . The injury to defendant’s business or property occurred when plaintiff filed the infringement suit —the compulsion which forced the choice. Defendant’s right of action, asserted by its counterclaim, then accrued.” Id., p. 809. The Court also stated: “. . . A prior adjudication that claimed patent rights are unenforceable is not an element prerequisite to the maintenance of an antitrust action for damages or injunctive relief based on misuse of the patent.” Id., at 809-10. In American Infra Red, supra, the Court stated, at 996-7: “As a second point defendants allege that the expense of defending the patent infringement segment of this litigation could serve as a basis for awarding treble damages and cite three cases in support of this theory. Clapper v. Original Tractor Cab Company, 270 F.2d 616 (7 Cir. 1959); Kobe, Inc. v. Dempsey Pump Co., 198 F.2d 416 (10 Cir. 1952); Dairy Food, Incorporated v." }, { "docid": "20710410", "title": "", "text": "injury in § 4 from the injury-in-fact used for the basis of damages in § 4. On this point we agree with 3M. Section 4 only contemplates a single injury, i.e., it does not allow one antitrust injury and a separate injury-in-fact that is used for the basis of damages. But this flaw in TransWeb’s position does not undo the damages award. TransWeb’s attorney fees are themselves both injury-in-fact and sufficiently stemming from the competition-reducing aspect of 3M’s behavior to qualify as antitrust injury. The district court instructed the jury in accordance with this proper interpretation of the law, and TransWeb presented sufficient evidence for the jury to conclude that these requirements of § 4 were met. This conclusion is supported by the only persuasive authority that addresses the award of attorney fees .as damages for a Walker Process violation: Kearney & Trecker Corp. v. Cincinnati Milacron Inc., 562 F.2d 365, (6th Cir.1977). In Kearney, the district court found the patentee liable under § 2 of the Sherman Act based on the Walker Process theory of liability. See id. at 372-73. The patentee had obtained a patent through inequitable conduct and later sued the defendant for infringement of that patent. See id. at 368-69, 371-72. The appeals court held that the defendant’s attorney fees could be awarded as § 4 damages even though “[the defendant] did not prove direct market place damages resulting from [the patentee’s] anticompet-itive acts.” Id. at 374-75. The court relied on the reasoning from the district court that the patentee forced the defendant into a position of having to choose from three alternatives: cease competition, take a license, or defend the infringement action. See id. at 374. The appeals court held that “one who has established or is attempting to establish an illegal monopoly by fraud on the Patent Office or misuse of a patent should not be permitted to further this goal by means of an infringement suit. When the antitrust violations are causally connected to the infringement action it is permissible to include the expenses of defending that action in the award of damages.”" }, { "docid": "23459786", "title": "", "text": "and the anti-trust violation. 15 U.S.C. § 15; Royster Drive-In Theatres, Inc. v. American Broadcasting-Paramount Theatres, Inc., 268 F.2d 246 (2 Cir. 1959) cert. denied 361 U.S. 885, 80 S.Ct. 156, 4 L.Ed. 2d 121. It follows, therefrom, that the expense of defending a patent infringement suit could not be considered as a per se element in determining treble damages in an anti-trust counterclaim. As stated in the Kobe case, supra, cited by defendants in 198 F.2d at p. 425, \"[I]f there was nothing more than the bringing of the infringement action, resulting damages could not be recovered. * In order, therefore to recover damages the law requires there be a showing of a causal connection between the infringement suit and the anti-trust activities. Upon a showing that the infringement litigation was initiated as part of the illegal scheme, it is conceivable that its defense could be considered as an “injury” under the anti-trust statutes. This, in fact, is exactly what defendants’ cases say. Patent litigation expense may only be considered in anti-trust counterclaims, “Where an infringement suit is brought as part of and in furtherance of a combination and conspiracy * * Dairy Foods, Incorporated v. Dairy Maid Products Cooperative, 297 F.2d 805, 809 (7 Cir. 1961). Therefore, whenever the patent litigation is initiated pursuant to a lawful purpose and there is no causal connection between the bringing of the action and the illegal conduct, the cost of the defense of the suit cannot become an element of damage which is tripled under the Clayton Act. See, Malta Manufacturing Company v. Osten, 215 F.Supp. 114 (E.D.Mich.1963). Applying this law to the facts of this case, there is no indication that the initiation of this suit was inspired by any monopolistic conspiracy or was a veiled attempt to unjustly drive plaintiffs’ competitors to the wall. In fact, all indications point out that this suit was brought with clean hands in a good faith attempt to protect plaintiffs’ patent rights, which they were fully entitled to do under the patent law. Indeed, the trial court specifically found that plaintiffs had been" }, { "docid": "2804566", "title": "", "text": "and expense of defending such an infringement suit.” 297 F.2d at 809. The Court also held that the counterclaim was not premature, saying: “. . . The injury to defendant’s business or property occurred when plaintiff filed the infringement suit —the compulsion which forced the choice. Defendant’s right of action, asserted by its counterclaim, then accrued.” Id., p. 809. The Court also stated: “. . . A prior adjudication that claimed patent rights are unenforceable is not an element prerequisite to the maintenance of an antitrust action for damages or injunctive relief based on misuse of the patent.” Id., at 809-10. In American Infra Red, supra, the Court stated, at 996-7: “As a second point defendants allege that the expense of defending the patent infringement segment of this litigation could serve as a basis for awarding treble damages and cite three cases in support of this theory. Clapper v. Original Tractor Cab Company, 270 F.2d 616 (7 Cir. 1959); Kobe, Inc. v. Dempsey Pump Co., 198 F.2d 416 (10 Cir. 1952); Dairy Food, Incorporated v. Dairy Maid Products Cooperative, 297 F.2d 805 (7 Cir. 1961). “In examining this contention we see that the statute, which affords the private cause of action, clearly requires a causal connection between the ‘injury in his business or property’ and the anti-trust violation. 15 U.S.C. § 15; Royster Drive-In Theatres, Inc. v. American Broadcasting-Paramount Theatres, Inc., 268 F.2d 246 (2 Cir. 1959) cert. denied 361 U.S. 885, 80 S.Ct. 156, 4 L.Ed.2d 121. It follows, therefrom, that the expense of defending a patent infringement suit could not be considered as a per se element in determining treble damages in an anti-trust counterclaim. As stated in the Kobe case, supra, cited by defendants in 198 F.2d at p. 425, ‘[I]f there was nothing more than the bringing of the infringement action, resulting damages could not be recovered. * * * ’ In order therefore to recover damages the law requires there be a showing of a causal connection between the infringement suit and the anti-trust activities. Upon a showing that the infringement litigation was initiated as" }, { "docid": "7004053", "title": "", "text": "patented. International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20 (1947). See United States v. Loew’s, Inc., 371 U.S. 38, 45, 83 S.Ct. 97, 9 L.Ed.2d 11 (1962). Zenith’s expenses in de fending the infringement suit brought pursuant to HRI’s antitrust violations are a proper subject of threefold recovery. Dairy Foods, Inc. v. Dairy Maid Prod. Cooperative, 297 F.2d 805, 809 (7th Cir. 1961). The district court’s determination of Zenith’s $50,000 basic damages for HRI’s patent misuse represented, according to the findings, expenses incurred in Zenith’s preparation for the 1963 trial of HRI’s infringement suit and in investigating HRI patents asserted against Zenith. The $50,000 figure is not here, and as far as we are informed by HRI, was not challenged at trial. In view of HRI’s unlawful conduct commencing in 1962, and the size of the record of trial of the infringement issues, we cannot say the basic damages are so unreasonable that we must set aside the allowance. We affirm the treble damage judgment of $150,000. The Antitrust Issues Zenith’s treble damage counterclaim was filed May 22,1963, alleging violation by HRI of the Sherman Act, 15 U.S.C. Secs. 1 and 2, by its alleged participation in conspiracies that unlawfully prevented Zenith from exporting its United States manufactured products into Australia, Canada and England. Zenith was granted injunctive relief and treble damages on the counterclaim in the amounts of $745,380 as to the Australian market, $18,892,173 as to the Canadian market, and $15,174,078 as to the English market. The judgment followed for $34,811,631. HRI challenges Zenith’s judgment on several grounds. However, we think the crucial question is whether the district court’s finding that Zenith was in fact damaged by the pools in the three countries during the four year damage period preceding the filing of the counterclaim is clearly erroneous. Fed.R.Civ. R. (52(a)). We agree with HRI that Zenith failed to sustain the burden of proving the essential fact of damage in the relevant period. We need pass on no other contention, therefore, in reversing the judgment on the counterclaim. Zenith had the" }, { "docid": "23459785", "title": "", "text": "to how much business was lost due to being precluded from this part of the market or how many tiles they would have sold to Hupp had it not been for this agreement. The finding of monetary damage, under the circumstances, would have to be purely speculative and without evidentiary support in the record. Something more definite than this must be produced to show actual injury to defendants’ business or property. As a second point defendants allege that the expense of defending the patent infringement segment of this litigation could serve as a basis for awarding treble damages and cite three cases in support of this theory. Clapper v. . Original Tractor Cab Company, 270 F.2d 616 (7 Cir. 1959); Kobe, Inc. v. Dempsey Pump Co., 198 F.2d 416 (10 Cir. 1952); Dairy Foods, Incorporated v. Dairy Maid Products Cooperative, 297 F.2d 805 (7 Cir. 1961). In examining this contention we see that the statute, which affords the private cause of action, clearly requires a causal connection between the “injury in his business or property” and the anti-trust violation. 15 U.S.C. § 15; Royster Drive-In Theatres, Inc. v. American Broadcasting-Paramount Theatres, Inc., 268 F.2d 246 (2 Cir. 1959) cert. denied 361 U.S. 885, 80 S.Ct. 156, 4 L.Ed. 2d 121. It follows, therefrom, that the expense of defending a patent infringement suit could not be considered as a per se element in determining treble damages in an anti-trust counterclaim. As stated in the Kobe case, supra, cited by defendants in 198 F.2d at p. 425, \"[I]f there was nothing more than the bringing of the infringement action, resulting damages could not be recovered. * In order, therefore to recover damages the law requires there be a showing of a causal connection between the infringement suit and the anti-trust activities. Upon a showing that the infringement litigation was initiated as part of the illegal scheme, it is conceivable that its defense could be considered as an “injury” under the anti-trust statutes. This, in fact, is exactly what defendants’ cases say. Patent litigation expense may only be considered in anti-trust counterclaims, “Where" }, { "docid": "20710411", "title": "", "text": "of liability. See id. at 372-73. The patentee had obtained a patent through inequitable conduct and later sued the defendant for infringement of that patent. See id. at 368-69, 371-72. The appeals court held that the defendant’s attorney fees could be awarded as § 4 damages even though “[the defendant] did not prove direct market place damages resulting from [the patentee’s] anticompet-itive acts.” Id. at 374-75. The court relied on the reasoning from the district court that the patentee forced the defendant into a position of having to choose from three alternatives: cease competition, take a license, or defend the infringement action. See id. at 374. The appeals court held that “one who has established or is attempting to establish an illegal monopoly by fraud on the Patent Office or misuse of a patent should not be permitted to further this goal by means of an infringement suit. When the antitrust violations are causally connected to the infringement action it is permissible to include the expenses of defending that action in the award of damages.” Id. While a causal connection is no longer a sufficient connection after Brunswick, 429 U.S. at 489, 97 S.Ct. 690, decided that same year, the core logic in Kearney is still valid: the patentee instigated an anti-competitive suit that forced the defendant to choose between ceasing competition, taking a disadvantageous position in competition (taking a license), or defending the' suit. Because the injury suffered by the antitrust-plaintiff under each choice flows from the anticompetitive aspect of the patent owner’s behavior, each can be recovered as antitrust damages. 3M had indicated that it would not license its patents to TransWeb. Therefore, in response to 3M’s anticompetitive infringement suit, TransWeb had only the options of ceasing competition altogether or defending the suit. Had TransWeb chosen the first option, evidence at trial demonstrated that TransWeb would have been forced out of the market and higher prices would have resulted. So, harmful effects on competition would have resulted and TransWeb would have undoubtedly suffered antitrust injury. TransWeb chose the second option. This prevented the harmful impacts to consumers of" }, { "docid": "2804567", "title": "", "text": "Dairy Maid Products Cooperative, 297 F.2d 805 (7 Cir. 1961). “In examining this contention we see that the statute, which affords the private cause of action, clearly requires a causal connection between the ‘injury in his business or property’ and the anti-trust violation. 15 U.S.C. § 15; Royster Drive-In Theatres, Inc. v. American Broadcasting-Paramount Theatres, Inc., 268 F.2d 246 (2 Cir. 1959) cert. denied 361 U.S. 885, 80 S.Ct. 156, 4 L.Ed.2d 121. It follows, therefrom, that the expense of defending a patent infringement suit could not be considered as a per se element in determining treble damages in an anti-trust counterclaim. As stated in the Kobe case, supra, cited by defendants in 198 F.2d at p. 425, ‘[I]f there was nothing more than the bringing of the infringement action, resulting damages could not be recovered. * * * ’ In order therefore to recover damages the law requires there be a showing of a causal connection between the infringement suit and the anti-trust activities. Upon a showing that the infringement litigation was initiated as part of the illegal scheme, it is conceivable that its defense could be considered as an ‘injury’ under the anti-trust statutes. This, in fact, is exactly what defendants’ cases say. Patent litigation expense may only ]ae considered in antitrust counterclaims, ‘Where an infringement suit is brought as part of and in furtherance of a combination and conspiracy * * *.’ Dairy Foods, Incorporated v. Dairy Maid Products Cooperative, 297 F.2d 805, 809 (7 Cir. 1961). Therefore, whenever the patent litigation is initiated pursuant to a lawful purpose and there is no causal connection between the bringing of the action and the illegal conduct, the cost of the defense of the suit cannot become an element of damage which is tripled under the Clayton Act. See, Malta Manufacturing Company v. Osten, 215 F.Supp. 114 (E.D.Mich.1963).” In the case before us, as we have said earlier, we have concluded that there was a “causal connection” between the bringing of the action and plaintiff’s antitrust activities. That concludes the discussion of the pertinent cases. The application of the" } ]

[ { "docid": "22620084", "title": "", "text": "(1985) (instruction to consider accomplice’s incriminating confession only for purpose of assessing truthfulness of defendant’s claim that his own confession was coerced); Watkins v. Sowders, 449 U. S. 341, 347 (1981) (instruction not to consider erroneously admitted eyewitness identification evidence); Walder v. United States, 347 U. S. 62 (1954) (instruction to consider unlawfully seized physical evidence only in assessing defendant’s credibility). In Bruton, however, we recognized a narrow exception to this principle: We held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. We said: “[Tjhere are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. . . .” 391 U. S., at 135-136 (citations omitted). There is an important distinction between this case and Bruton, which causes it to fall outside the narrow exception we have created. In Bruton, the codefendant’s confession “expressly implicat[ed]” the defendant as his accomplice. Id., at 124, n. 1. Thus, at the time that confession was introduced there was not the slightest doubt that it would prove “powerfully incriminating.” Id., at 135. By contrast, in this case the confession was not incriminating on its face, and became so only when linked with evidence introduced later at trial (the defendant’s own testimony). Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that “the defendant helped me commit the crime” is more vivid than inferential incrimination, and hence more difficult to thrust out of mind. Moreover, with regard to such" } ]

[ { "docid": "15231932", "title": "", "text": "a landscape that had already been formed by Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987). In Bruton, the Supreme Court held that post-arrest statements made by non-testifying co-defendants that facially incriminate a defendant are inadmissible because such statements violate the defendant’s Sixth Amendment right to cross-examine adverse witnesses. The Supreme Court stated that “where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial,” a limiting instruction given by the trial court cannot eliminate the possibility of significant prejudicial effect. Bruton, 391 U.S. at 135-36, 88 S.Ct. 1620. However, in Richardson, the Supreme Court considered the confession of a non-testifying co-defendant, admitted during a joint trial, that had been redacted to omit the names of all co-defendants. The Court refused to apply Bruton, holding that “the Confrontation Clause is not violated by the admission of a nontestifying co-defendant’s confession with the proper limiting instruction when ... the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” Richardson, 481 U.S. at 211, 107 S.Ct. 1702. In such a situation, the confession is not so “powerfully incriminating” that a limiting instruction given by the district court could not effectively eliminate any prejudicial effect. Id. at 208, 107 S.Ct. 1702. The Richardson Court expressly stated that it “express[ed] no opinion on the admissibility of a confession in which the defendant’s name has been replaced with a symbol or neutral pronoun.” Id. at 211 n. 5, 107 S.Ct. 1702. That was the issue later presented in Gray. In Gray, a confession written by a co-defendant that explicitly referred to the defendant was edited so that the defendant’s name was replaced by the word “deleted” or a blank space. 523 U.S. at 188, 118 S.Ct. 1151. When the government’s law enforcement witness read the confession to the jury, he said “deleted” wherever a blank space appeared. Then, immediately after reading" }, { "docid": "22182764", "title": "", "text": "against the defendant and is available for cross examination.” Ryan v. Miller, 303 F.3d 231, 247 (2d Cir.2002). Where such accusatory statements are admissible at a trial against some defendants but not others, the law recognizes that a trial court’s instruction to a jury to consider the statements only in evaluating the guilt of the defendants against whom they are admissible is generally sufficient to eliminate any Confrontation Clause concern with respect to other defendants. As the Supreme Court explained in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), “[ojrdinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendant.” Id. at 206, 107 S.Ct. 1702. The law “almost invariabl[y] assum[es]” that jurors follow such limiting instructions. Id. (collecting cases). Nevertheless, in Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, the Supreme Court identified an exception to this assumption. It determined that in joint trials, where a non-testifying defendant’s confession specifically inculpates a co-defendant, “the risk that the jury will not, or cannot, follow instructions” to limit its consideration of the evidence only as against the declarant “is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Id. at 135, 88 S.Ct. 1620. The Court held that, “where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant,” are admitted at a joint trial, courts “cannot accept limiting instructions as an adequate substitute for [the defendant’s] constitutional right of cross-examination.” Id. at 135-37, 88 S.Ct. 1620. In Bruton, the Supreme Court acknowledged that some lower courts had sought to minimize the identified concern by “requir[ing] deletion of references to codefendants where practicable” when admitting a confession solely against a non-testifying defendant declarant. Id. at 134 n. 10, 88 S.Ct. 1620 (collecting cases). It did not, however, express any view as to the adequacy of this procedure" }, { "docid": "15078834", "title": "", "text": "your wife’s involvement as supposedly a 50 percent owner, someone who has received a salary and someone who has received some monies in addition to that salary, what involvement have you had with JCI EQUIPMENT? CD: The business with SPHERE, the orders, writing the orders and ah material being supplied, given. DH: And what did you bring to the table other than more business with SPHERE? CD: That’s all. The court instructed the jury that the statement could be considered against only D’Cunha and not against Jimenez. Jimenez argues that despite the court’s limiting instruction, the admission of the statement violated his right under the Confrontation Clause to cross-examine witnesses against him. A defendant is deprived of this right when a codefendant’s incriminating confession is introduced at their joint trial, even if the jury is instructed to consider that confession only against the codefendant. Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The Court reasoned: [Tjhere are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Bruton, 391 U.S. at 135-36, 88 S.Ct. at 1627-28 (citations omitted). The jBruton rule, however, is a narrow one that applies only to statements that directly implicate the defendant without reference to other admissible evidence. Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987); United States v. Espinoza-Seanez, 862 F.2d 526 (5th Cir.1988). In Richardson, the Court found that a code-fendant’s extrajudicial confession that was carefully redacted to eliminate the defendant’s name and any reference to her existence did not fall within Bruton. Richardson, 481 U.S. at 211, 107 S.Ct. at 1709. Similarly, in Espinoza-Seanez, this Circuit held that a confession acknowledging the existence of a co-conspirator without naming the" }, { "docid": "4481127", "title": "", "text": "cause and actual prejudice standard, we will proceed to determine on the merits whether the petitioner has shown that his Sixth Amendment right to confront and cross-examine witnesses was violated. The petitioner argues that this right was violated when a statement made by a nontestifying co-defendant, with whom the petitioner was being jointly tried, was revealed to the jury. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court held that a defendant’s conviction in a joint trial should be set aside when a co-defendant’s confession inculpating the defendant is revealed through the testimony of a witness even though the trial court has instructed the jury to disregard the confession in determining the defendant’s guilt or innocence. In Bruton, a postal inspector testified at the joint trial of two defendants that one of the defendants had confessed orally that he and his co-defendant had committed a robbery. Id. at 124, 88 S.Ct. at 1621. Although noting that the oral confession was legitimate evidence against the defendant who made it, the Court held that the introduction of the confession posed a substantial threat to the other defendant’s Sixth Amendment right to confront witnesses against him, since the confessing defendant did not take the stand. Id. at 127-28, 137, 88 S.Ct. at 1623, 1628. The Court reasoned that an instruction by the trial court to disregard such a confession could not deflate the impact on the jury of such a powerfully incriminating extrajudicial statement. Id. at 135-36, 88 S.Ct. at 1627-28. The Court concluded that the unreliability of such a confession would be intolerably compounded if the alleged accomplice did not testify and thus become subject to cross-examination. Id. at 136, 88 S.Ct. at 1628. In interpreting Bruton, we have held that the admission of a co-defendant’s out-of-court confession violates a defendant petitioner’s right of confrontation under the Sixth Amendment where the confession is vital to the government’s proof of its case and directly implicates the defendant. United States v. Key, 725 F.2d 1123, 1125-27 (1984). In the present case, we hold that Jack" }, { "docid": "17690155", "title": "", "text": "with the concern I saw it raise.” The district court explained that it could not issue a curative instruction and rebuke the prosecutor because the defendants failed to make a contemporaneous objection. The majority holds that the prosecutor’s use of the defendants’ statements in its rebuttal did not violate Bruton and that regardless, the error was not preserved and did not amount to plain error. I disagree. I begin first with the Bruton violation. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court held that the admission of a nontestifying codefendant’s confession, which expressly implicated the defendant, presented a great risk that the jury could not or would not follow the court’s limiting instructions and therefore violated the defendant’s Sixth Amendment rights under the Confrontation Clause. Id. at 137, 88 S.Ct. 1620. The Court explained that “[n]ot only are [such incriminating statements] devastating to the defendant but their credibility is inevitably suspect.” Id. at 136, 88 S.Ct. 1620. Thus, the Court held that the conduct of the prosecutor violated the defendant’s Sixth Amendment right “to be confronted with the witnesses against him,” U.S. Const, amend. VI. Bruton, 391 U.S. at 137, 88 S.Ct. 1620. In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), the Supreme Court revisited its holding in Bruton and addressed whether a statement, redacted to omit any reference to the defendant, violates Bruton when the defendant is linked to the confession by properly admitted evidence. Id. at 202, 107 S.Ct. 1702. Clarifying that Bruton’s holding is a narrow one, Richardson explained that Bruton does not apply to statements that only become incriminating when linked with evidence introduced later at trial. Id. at 208, 107 S.Ct. 1702. Thus, the Court held, “the Confrontation Clause is not violated by the admission of a non-testifying codefendant’s confession with a proper limiting instruction when ... the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” Id. at 211, 107 S.Ct. 1702. While Richardson held that Bruton’s application does" }, { "docid": "21164121", "title": "", "text": "be introduced against the declarant as an admission, it may not be admitted as to the other defendants unless there is an independent ground for doing so. Vega Molina, 407 F.3d at 522 (citing Crawford, 541 U.S. at 42-50, 124 S.Ct. 1354). Where no alternative basis for admission exists, the trial court should instruct the jury that the out-of-court statement may be considered as evidence only against the declarant and not against his co-defendants. Id.; see also Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (finding no Confrontation Clause violation where co-defendant’s confession was admitted “with a proper limiting instruction”). But a limiting instruction will not always be adequate to protect the Sixth Amendment rights of the declarant’s co-defendants. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court concluded that in certain instances — where a non-testifying defendant’s extrajudicial statement is “powerfully incriminating” against other defendants — the statement may not be used in a joint trial at all. Id. at 126, 135-36, 88 S.Ct. 1620; Vega Molina, 407 F.3d at 518-19; see also Gray v. Maryland, 523 U.S. 185, 192, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). In such a case, “the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Bruton, 391 U.S. at 135, 88 S.Ct. 1620. Defendants argue that Morelis’s statement was “powerfully incriminating” within the meaning of Bruton and that its admission into evidence through Agent Santiago’s testimony was thus reversible error. The testimony was given during questioning by the prosecutor about Santiago’s interview with Morelis after the Sea Atlantic arrived in Puerto Rico. Asked if Morelis indicated whether Tejeiro had told him the purpose of the trip at the time he was hired in Venezuela, Santiago answered affirmatively. He then elaborated: He stated that they were going from Venezuela to Curagao to pick up a load. But Tejeiro told to him that" }, { "docid": "4481128", "title": "", "text": "made it, the Court held that the introduction of the confession posed a substantial threat to the other defendant’s Sixth Amendment right to confront witnesses against him, since the confessing defendant did not take the stand. Id. at 127-28, 137, 88 S.Ct. at 1623, 1628. The Court reasoned that an instruction by the trial court to disregard such a confession could not deflate the impact on the jury of such a powerfully incriminating extrajudicial statement. Id. at 135-36, 88 S.Ct. at 1627-28. The Court concluded that the unreliability of such a confession would be intolerably compounded if the alleged accomplice did not testify and thus become subject to cross-examination. Id. at 136, 88 S.Ct. at 1628. In interpreting Bruton, we have held that the admission of a co-defendant’s out-of-court confession violates a defendant petitioner’s right of confrontation under the Sixth Amendment where the confession is vital to the government’s proof of its case and directly implicates the defendant. United States v. Key, 725 F.2d 1123, 1125-27 (1984). In the present case, we hold that Jack Riner’s right to confront and cross-examine witnesses against him was violated by the admission of Ronald’s testimony as to his conversation with Evans even though the judge sustained defense counsel’s objection to the testimony as to Jack. As in Bruton, the impact of the admission of the incriminating testimony on the jury could not be deflated by the trial court’s instruction to disregard the testimony as to Jack, especially when the testimony was the only evidence clearly implicating Jack as an aider and abettor of his uncle. Ronald’s testimony as to Evans’s statement was vital to the government’s case and directly implicated Jack in the murder. In such a case, the admission of the prejudicial testimony is not harmless. Cf. Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969) (any violation of Bruton is harmless error where there is overwhelming evidence of the petitioner’s guilt and the prejudicial impact of the co-defendants’ statements is relatively insignificant). We hold that the admission of the testimony directly violated the petitioner’s right to confront" }, { "docid": "56780", "title": "", "text": "each decision. In Bruton, the Supreme Court proscribed the introduction of a nontestifying defendant’s extrajudicial statements that are “powerfully incriminating” as to a jointly-tried codefendant. 391 U.S. at 135, 88 S.Ct. 1620. The Court made pellucid that the vice inherent in such a tactic cannot reliably be abated through the use of limiting instructions. Id. (explaining that “the risk that the jury will not, or cannot, follow [such] instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored”). In Richardson, the Court refined the Bruton rule. It held that “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when ... the confession is redacted to eliminate not only the [objecting] defendant’s name, but any reference to his or her existence.” 481 U.S. at 211, 107 S.Ct. 1702. Under this refinement, “[statements that are incriminating only when linked to other evidence in the case do not trigger application of Bruton’s preclusionary rule.” United States v. Vega Molina, 407 F.3d 511, 520 (1st Cir.2005). Richardson left open the question of whether Bruton’s prophylaxis extended to a statement in which the objecting defendant’s name has been replaced with a symbol or neutral pronoun. Gray answered that question, holding that “redactions that replace a proper name with an obvious blank, the word ‘delete,’ a symbol, or similarly notify the jury that a name has been deleted are similar enough to Bruton’s unredacted confessions as to warrant the same legal results.” 523 U.S. at 195, 118 S.Ct. 1151. Under this regime, an inquiring court must judge the efficacy of redaction on a case-by-case basis, paying careful attention to both a statement’s text and the context in which it is offered. Vega Molina, 407 F.3d at 520. In this corner of the law, one size does not fit all. One case may involve numerous actors and events, such that no compelling inference can be drawn that a symbol or neutral pronoun refers to a specific defendant. A different case" }, { "docid": "16851219", "title": "", "text": "eodefendant’s confession to a postal inspector specifically named petitioner Bruton. The Court held that a jury instruction to consider the confession only against the codefendant was inadequate to protect Bruton’s Confrontation Clause rights. “[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” 391 U.S. at 135-36, 88 S.Ct. 1620. The Court left open the question whether a confession or admission would be admissible against the declarant in a joint trial if it was redacted to eliminate references to codefendants. See 391 U.S. at 133-34 & n. 10, 88 S.Ct. 1620. In Richardson, the codefendant’s written confession to police was redacted to eliminate all references to respondent Marsh. Observing that the jury is more likely to obey a limiting instruction when the confession is linked to a codefendant only by other trial evidence, the Court held “that the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” 481 U.S. at 211, 107 S.Ct. 1702. Richardson did not involve the common situation we face here — redactions that refer to joint activity with other culprits but eliminate any specific identification of the declar-ant’s codefendants. The Supreme Court recently considered a variation of this problem in Gray v. Maryland, — U.S. -, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). The eodefendant’s written confession to police was redacted by replacing specific references to petitioner Gray with a blank space or the word “deleted” or “deletion.” A police officer read the redacted confession and then testified that after receiving it, he was able to arrest Gray. Distinguishing Richardson," }, { "docid": "19903632", "title": "", "text": "to determine “clearly established Federal law” gives defendants incentive to pursue all colorable claims based on “Federal law” as far as possible in the state courts because doing so will give them the best chance of success in federal habeas proceedings, not to mention the underlying state proceedings. This is a salutary effect that serves Congress’s goals in passing AEDPA. See 28 U.S.C. § 2254(b) & (c) (requiring exhaustion of state court remedies); Duncan v. Walker, 533 U.S. 167, 181, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001) (referencing “clear purpose to encourage litigants to pursue claims in state court prior to seeking federal collateral review”). IV. Having concluded that Gray was not “clearly established Federal law,” Greene is left to argue only Bruton and Marsh. Accordingly, we must determine whether the Pennsylvania Superior Court unreasonably applied those cases when it decided that the redactions of Finney’s and Womack’s statements did not violate Greene’s rights under the Confrontation Clause. In Bruton, the defendant challenged his conviction on the basis that his right to confront the witnesses against him was violated because the confession of his non-testifying codefendant, which directly implicated him, was introduced into evidence. 391 U.S. at 123, 88 S.Ct. 1620. The Court of Appeals had affirmed the defendant’s conviction because the jury had received a limiting instruction that the codefendant’s confession was competent evidence against only the codefendant. The Supreme Court reversed, holding that because of the substantial risk that the jury, despite instruction to the contrary, looked to the incriminating extrajudicial statements in determining the [defendant’s] guilt, admission of [the codefendant’s] confession in this joint trial violated [the defendant’s] right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. Id. at 126, 88 S.Ct. 1620. The Court acknowledged that the instructions to the jury were clear, id. at 137, 88 S.Ct. 1620, but reasoned that there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot" }, { "docid": "17532896", "title": "", "text": "prosecutor had erred in referring to Peterson during his closing argument as “person X,” but concluded that the Bruton error was harmless beyond a reasonable doubt. The court also concluded that reading from the unadmitted police report was harmless. II. STANDARD OF REVIEW We review a district court’s denial of a motion for a new trial pursuant to Fed. R.Crim.P. 33 for an abuse of discretion. United States v. Young, 17 F.3d 1201, 1203 (9th Cir.1994). Alleged violations of the Confrontation Clause, however, are reviewed de novo. United States v. George, 960 F.2d 97, 99 (9th Cir.1992). The denial of a motion for a new trial based on prosecutorial misconduct is reviewed for an abuse of discretion. United States v. Sayetsitty, 107 F.3d 1405, 1408 (9th Cir.1997). Peterson had the burden of showing that it is “more probable than not that the misconduct materially affected the verdict.” United States v. Hinton, 31 F.3d 817, 824 (9th Cir.1994) (citation omitted). III. DISCUSSION A. The Bruton Violation In this case, there was clearly a Bruton violation. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Court ruled that a defendant is deprived of his Sixth Amendment right of confrontation when a facially incriminating confession of a nontestifying eodefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. Id. at 126, 88 S.Ct. at 1622-23. The Court stated: [T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Id. at 135-36, 88 S.Ct. at 1627-28 (citations omitted). In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176, (1987), the Court held that admission of a nontestifying codefendant’s" }, { "docid": "22182765", "title": "", "text": "in joint trials, where a non-testifying defendant’s confession specifically inculpates a co-defendant, “the risk that the jury will not, or cannot, follow instructions” to limit its consideration of the evidence only as against the declarant “is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.” Id. at 135, 88 S.Ct. 1620. The Court held that, “where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant,” are admitted at a joint trial, courts “cannot accept limiting instructions as an adequate substitute for [the defendant’s] constitutional right of cross-examination.” Id. at 135-37, 88 S.Ct. 1620. In Bruton, the Supreme Court acknowledged that some lower courts had sought to minimize the identified concern by “requir[ing] deletion of references to codefendants where practicable” when admitting a confession solely against a non-testifying defendant declarant. Id. at 134 n. 10, 88 S.Ct. 1620 (collecting cases). It did not, however, express any view as to the adequacy of this procedure to avoid a Confrontation Clause violation. Almost two decades passed before the Supreme Court addressed the redaction issue in 1987 in Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176. There, the Court held that “the Confrontation Clause is not violated by the admission of a nontestifying codefendant’s confession with a proper limiting instruction when ... the confession is redacted to eliminate not only the defendant’s name, but any reference to his or her existence.” Id. at 211, 107 S.Ct. 1702. It reasoned that the “narrow exception” Bruton had created did not extend to cases where, through redaction, the confession was no longer “incriminating on its face, [but] became so only when linked with evidence introduced later at trial.” Id. at 208, 107 S.Ct. 1702. The Court explained: Where the necessity of such linkage is involved, it is a less valid generalization that the jury will not likely obey the instruction to disregard the evidence. Specific testimony that “the defendant helped me commit the crime” is more vivid than inferential incrimination, and" }, { "docid": "22276345", "title": "", "text": "because it implicated them and they were unable to cross-examine Pierce to challenge his statements. “Bruton” claims address whether the defendant was able effectively to exercise his sixth amendment right of confrontation. Bruton, 391 U.S. at 126, 88 S.Ct. at 1622. Alleged constitutional errors require de novo review by the court of appeals. McConney, 728 F.2d at 1207. In Bruton, two defendants, Evans and Bruton, were jointly tried. A federal agent testified to Evans’ confession which stated that both he and Bruton had committed a crime. The trial court instructed the jury that the confession was to be used only against the declarant and not against Bru-ton. The Supreme Court reversed Bruton’s conviction. It held that “because of the substantial risk that the jury, despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of Evans’ confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” Bruton, 391 U.S. at 126, 88 S.Ct. at 1622. The Court explicitly found that instructions telling the jury to apply extrajudicial statements only as to the declarant were intrinsically ineffective. Id. at 129, 88 S.Ct. at 1624. However, Bruton does not require that all extrajudicial statements or confessions not be used in a joint trial. Rather, only those statements that “clearly inculpate” the defendant or are “powerfully incriminating” implicate the “Bruton” rule. Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987); Bruton, 391 U.S. at 124 n. 1, 135, 88 S.Ct. at 1621 n. 1, 1627; United States v. Brooklier, 685 F.2d 1208, 1218 (9th Cir.1982) (per curiam), cert. denied, 459 U.S. 1206, 103 S.Ct. 1194, 75 L.Ed.2d 439 (1983). The Supreme Court, in its latest treatment of the “Bru-ton” rule, has definitively found that redaction serves to eliminate any Bruton problems: We hold that the Confrontation Clause is not violated by the admission of a nontes-tifying codefendant’s confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant’s name, but any reference to her existence." }, { "docid": "16851218", "title": "", "text": "defendants’ various out-of-court admissions. No defendant testified at the trial. The principles that frame this issue were summarized in Richardson v. Marsh, 481 U.S. 200, 206-07, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987): The right of confrontation includes the right to cross-examine witnesses. Therefore, where two defendants are tried jointly, the pretrial confession of one cannot be admitted against the other unless the confessing defendant takes the stand. Ordinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness “against” a defendant if the jury is instructed to consider that testimony only against a codefendant. This accords with the almost invariable assumption of the law that jurors follow them instructions.... In Bruton, however, we recognized a narrow exception to this principle: We held that a defendant is deprived of his Sixth Amendment right of confrontation when the facially incriminating confession of a nontestifying codefend-ant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. In Bruton, a nontestifying eodefendant’s confession to a postal inspector specifically named petitioner Bruton. The Court held that a jury instruction to consider the confession only against the codefendant was inadequate to protect Bruton’s Confrontation Clause rights. “[T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial.” 391 U.S. at 135-36, 88 S.Ct. 1620. The Court left open the question whether a confession or admission would be admissible against the declarant in a joint trial if it was redacted to eliminate references to codefendants. See 391 U.S. at 133-34 & n. 10, 88 S.Ct. 1620. In Richardson, the codefendant’s written confession to police was redacted to eliminate all references to respondent Marsh. Observing that" }, { "docid": "19903633", "title": "", "text": "against him was violated because the confession of his non-testifying codefendant, which directly implicated him, was introduced into evidence. 391 U.S. at 123, 88 S.Ct. 1620. The Court of Appeals had affirmed the defendant’s conviction because the jury had received a limiting instruction that the codefendant’s confession was competent evidence against only the codefendant. The Supreme Court reversed, holding that because of the substantial risk that the jury, despite instruction to the contrary, looked to the incriminating extrajudicial statements in determining the [defendant’s] guilt, admission of [the codefendant’s] confession in this joint trial violated [the defendant’s] right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. Id. at 126, 88 S.Ct. 1620. The Court acknowledged that the instructions to the jury were clear, id. at 137, 88 S.Ct. 1620, but reasoned that there are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.....Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Id. at 135-36, 88 S.Ct. 1620 (citations omitted). Accordingly, the Court refused to accept the limiting instruction as an adequate substitute for the constitutional right of cross-examination. Id. at 137, 88 S.Ct. 1620. Two decades later, the Supreme Court revisited Bruton in Marsh. In that case, the nontestifying codefendant’s “confession was redacted to omit all reference to [Marsh]indeed, to omit all indication that anyone other than [two other individuals] participated in the crime.” 481 U.S. at 203, 107 S.Ct. 1702. Nonetheless, Marsh filed a § 2254 petition, alleging, inter alia, that the introduction of her codefendant’s confession violated her rights under the Confrontation Clause. The Supreme Court began its analysis by pointing out that Bruton was a “narrow exception” to the accepted principle that jurors are presumed to follow their instructions. Id. at 207, 107 S.Ct. 1702. It noted that there was" }, { "docid": "6124923", "title": "", "text": "cured by instructing the jury to consider the statement only in assessing the guilt of the codefendant who made it. Bruton v. United States, 391 U.S. 123, 135-36, 88 S.Ct. 1620, 1627-28, 20 L.Ed.2d 476 (1968) (finding that the “risk that the jury will not, or cannot, follow instructions [to disregard the nontestifying co-defendant’s statement] is so great, and the consequences of failure so vital to the defendant,” that a limiting instruction is insufficient to insulate against the Confrontation Clause violation). It was not until Cruz, however, that the Court addressed a situation similar to the case presently before us, where, in addition to the statement given by the nontestifying eodefendant, the defendant made a statement of his own that corroborates the nontestify-ing codefendant’s statement. In Cruz, the Court held that the introduction of a defendant’s own confession that corroborates, or “interlocks” with, the nontestifying codefend-ant’s statement “might, in some cases render the violation of the Confrontation Clause harmless, but could not cause introduction of the nontestifying codefendant’s confession not to constitute a violation.” Id. 481 U.S. at 191, 107 S.Ct. at 1718 (adopting reasoning of concurring opinion in Parker v. Randolph, 442 U.S. 62, 77-80, 99 S.Ct. 2132, 2141-42, 60 L.Ed.2d 713 (1979) (Blaekmun, J., concurring in part and concurring in judgment). Thus, in a joint trial, a nontestifying codefendant’s statement, to the extent that it implicates another defendant, violates Bruton even though that statement “interlocks” with the statement of the implicated defendant. Id. The Bruton error is not fatal, however, if it is deemed harmless by a reviewing court. In the present case, the trial court violated the Bruton rule by admitting the statement of a nontestifying codefendant, Puiatti, that incriminated the defendant, Glock. Moreover, the Bruton violation was not avoided by either the trial judge’s clear and concise instruction to the jury not to consider Puiatti’s statement as evidence against Glock or by the fact that both Glock’s individual statement and the joint confession of Glock and Puiatti unquestionably corroborated Puiatti’s statement. Accordingly, we must review the circumstances in which the error was made in order to" }, { "docid": "1889970", "title": "", "text": "names. Gray, 523 U.S. at 188, 118 S.Ct. 1151. When the confession was read in court, the detective who read it into evidence said the words “deleted” or “deletion” whenever either of the codefendants’ names appeared. Id. One of the codefen-dants challenged the admission of the confession into evidence, despite the judge giving a limiting instruction. The Gray Court took the opportunity to delineate the boundaries of the exception to the constitutional right to confrontation. It wrote that in Gray, “unlike Richardson’s redacted confession, this confession refers directly to the ‘existence’ of the nonconfessing defendant.” Id. at 192, 118 S.Ct. 1151. It held that, redaction that replaces a defendant’s name with an obvious indication of deletion ... still falls within Bruton’s protective rule.... Redactions that simply replace a name with an obvious blank space ... or other similarly obvious indications of alteration, however, leave statements that, considered as a class, so closely resemble Bruton’s unredact-ed statements that, in our view, the law must require the same result. Id. This is because “the obvious deletion may well call the jurors’ attention specially to the removed name [and] ... [is] directly accusatory.” Id. at 193-94, 118 S.Ct. 1151. Justice Scalia in dissent noted that “[t]o-day the Court ... extends Bruton to confessions that have been redacted to delete the defendant’s name.” Id. at 200, 118 S.Ct. 1151. Taken together, the current state of the law is that there is a Confrontation Clause violation when a non-testifying co-defendant’s confession is introduced that names another codefendant, Bruton, 391 U.S. at 126, 88 S.Ct. 1620, or that refers directly to the existence of the codefendant in a manner that is directly accusatory, Gray, 523 U.S. at 193-94, 118 S.Ct. 1151. That is because such statements present a “substantial risk that the jury, despite instructions to the contrary, [will] look[ ] to the incriminating extrajudicial statements in determining [the defendant’s] guilt.” Bruton, 391 U.S. at 126, 88 S.Ct. 1620. But there is no violation if the confession is properly redacted to omit any reference at all to the codefendant, making it more likely that the jury" }, { "docid": "6186089", "title": "", "text": "officer to recount the confession that Gilbert gave soon after being arrested. The original confession stated that Mayfield was the “main man” for whom Gilbert sold drugs. In his statement, Gilbert also urged the police not to tell Mayfield because he would “kill me for sure.” The statement was redacted to omit Mayfield’s name and to say that Gilbert sold drugs for “an individual.” Because Gilbert could not be compelled to take the stand at his own trial, the introduction of Gilbert’s confession through the officer precluded Mayfield from confronting his accuser. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Supreme Court held that, “the substantial risk that the jury, despite [jury] instructions to the contrary, looked to the incriminating extrajudicial statements in determining petitioner’s guilt, admission of [the] confession in this joint trial violated petitioner’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment.” Id. at 126, 88 S.Ct. 1620. Recently, the Supreme Court established that even statements that do not explicitly name a codefendant are forbidden if they are redacted in such a way as to make the naming of the codefendant obvious to the jury. See Gray v. Maryland, 523 U.S. 185, 118 S.Ct. 1151, 1155, 140 L.Ed.2d 294 (1998). We think that the impermissible inference that Gilbert named Mayfield as the drug ringleader was unavoidable, if not on its face, then certainly in the context of the previously admitted evidence at trial. Although the redacted confession originally referred to “an individual,” the testimony elicited by Gilbert established that Gilbert referred to “the main man,” meaning the “individual” was a male and was the drug ringleader. In addition, prior to the admission of the confession, the jurors had already improperly heard that Mayfield was a “primary suspect” on the search warrant, but Gilbert was not listed, that a “reliable” informant told police that May-field was at the apartment when a drug delivery arrived, and that the police officer who obtained the warrant was familiar with Mayfield. This evidence reinforced what was already fairly obvious from the" }, { "docid": "17532897", "title": "", "text": "Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Court ruled that a defendant is deprived of his Sixth Amendment right of confrontation when a facially incriminating confession of a nontestifying eodefendant is introduced at their joint trial, even if the jury is instructed to consider the confession only against the codefendant. Id. at 126, 88 S.Ct. at 1622-23. The Court stated: [T]here are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant, who stands accused side-by-side with the defendant, are deliberately spread before the jury in a joint trial. Id. at 135-36, 88 S.Ct. at 1627-28 (citations omitted). In Richardson v. Marsh, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176, (1987), the Court held that admission of a nontestifying codefendant’s confession mth a proper limiting instruction does not violate the Confrontation Clause, if the confession is redacted to eliminate not only the defendant’s name, but any reference to her or his existence. Id. at 211, 107 S.Ct. at 1709. In a footnote, the Court stated: “We express no opinion on the admissibility of a confession in which the defendant’s name has been replaced with a symbol or a neutral pronoun.” Id. at 211 n. 5,107 S.Ct. at 1709 n. 5. After Richardson, we held that redacting a confession by replacing the defendant’s name with a neutral pronoun did not violate Bruton. United States v. Enriquez-Estrada, 999 F.2d 1355 (9th Cir.1993). We there agreed with the proposition that: [T]he admission in a joint trial of a codefendant’s confession that is redacted to substitute a neutral pronoun or other general word for the name of the complaining defendant does not violate Bruton so long as the confession does not compel a direct implication of the complaining defendant. Id. at 1359 (quoting United States v. Vasquez, 874 F.2d" }, { "docid": "858558", "title": "", "text": "461 (1967). Severance is usually addressed to the discretion of the trial judge, but see, Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), and his denial is not subject to reversal unless clear prejudice is shown. Johnson v. United States, 356 F.2d 680, 682 (8th Cir.), cert. denied, 385 U.S. 857, 87 S.Ct. 105, 17 L.Ed.2d 84 (1966). It has not been shown here. The defendant argues that Bruton v. United States, supra, requires severance in any case where evidence of substantial importance is admissible against one defendant but not against another. The holding in Bruton is not that broad. The Court, in Roberts v. Russell, 392 U.S. 293, 294, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968), set forth its holding in Bruton in the following language: «•* * * that despite instructions to the jury to disregard the implicating statements in determining the codefendant’s guilt or innocence, admission at a joint trial of a defendant’s extrajudicial confession implicating a codefendant violated the codefendant’s right of cross-examination secured by the Confrontation Clause of the Sixth Amendment. * * * ****** “ ‘[Tjhere are some contexts in which the risk that the jury will not, or cannot, follow instructions is so great, and the consequences of failure so vital to the defendant, that the practical and human limitations of the jury system cannot be ignored. . . . Such a context is presented here, where the powerfully incriminating extrajudicial statements of a codefendant . are deliberately spread before the jury in a joint trial.’ * * * [Bruton v. United States, 391 U.S. 123, 135-136, 88 S.Ct. 1620.” The Court noted in Bruton that in many cases, “ * * * [I] t is not unreasonable to conclude that * * * the jury can and will follow the trial judge’s instructions to disregard such information. * * * ”. Bruton v. United States, supra at 135, 88 S.Ct. at 1627. This is such a case. (2) We find no merit in the defendant’s argument that lack of cooperation between defense counsel preju diced the" } ]

[ { "docid": "2498311", "title": "", "text": "and Cardi are not dispositive of this appeal, however, because in those two cases there was an express determination that the original sentence remained appropriate. In a recent comprehensive reconsideration of procedure in Tucker appeals, the Ninth Circuit has explained that a district court may dismiss a § 2255 motion on two different rationales. Farrow v. United States, 580 F.2d 1339, 1352-53 (9th Cir. 1978) (en banc). The court may determine from the record at the time of the § 2255 motion that a new sentence imposed without regard to the challenged convictions would be the same. This amounts to a “resentencing on the basis of a record that excludes the challenged priors.” 580 F.2d at 1353. Since this is exactly the relief the petitioner seeks, it is perforce sufficient. This is what was done in Crovedi and Cardi. Alternatively the judge may rely on his memory and state that at the time of sentencing he did not rely on the challenged convictions, or was not influenced by them. This too may be sufficient ground for dismissal. 580 F.2d 1339, 1352, citing Blackledge v. Allison, 431 U.S. 63, 74 n. 4, 97 S.Ct. 1621, 52 L.Ed.2d 736 (1977). Nonetheless, according to the Ninth Circuit where the district judge’s disclaimer of reliance on the invalid priors is in fact contradicted by the record, we have held that the case must be remanded . . . [citing] Leano v. United States, 494 F.2d 361 (9th Cir. 1974). Farrow, supra, at 1348. Accord, Grant v. White, 579 F.2d 48 (8th Cir. 1978). The problem in the appeal before us is that the district judge followed the second procedure in dismissing the § 2255 motion, but his memory is seemingly contradicted by the record. The Ninth Circuit limited Leano, supra, in Wilson v. United States, 534 F.2d 130 (9th Cir. 1976), holding that even where the § 2255 judge’s disclaimer of reliance is contradicted by the record, if there is a “substantial basis in the record on its face to support the court’s statement of non-reliance, then the reconsideration mandated by Tucker has been" } ]

[ { "docid": "16720513", "title": "", "text": "Court held that a conviction not'previously invalidated yet invalid on its face under Gideon v. Wainwright could not be used for penalty enhancement under a state’s recidivist statute. In United States v. Tucker, 404 U.S. 443, 449, 92 S.Ct. 589, 593, 30 L.Ed.2d 592 (1972), the Court held that a conviction invalidated under Gideon could not be considered in sentencing a defendant after a subsequent conviction. Thus, the Supreme Court has held that the Constitution proscribes the use of prior convictions for sentence enhancement where the defendant was denied counsel under Gideon. See United States v. Custis, 786 F.Supp. 533, 536 (D.Md.1992). In Farrow v. United States, 580 F.2d 1339 (9th Cir.1978) (en banc), our seminal pre-Guidelines case, we held that Tucker requires the district court to undertake a hearing to determine the validity of the challenged prior convictions if the conviction will be used to enhance the defendant’s sentence. Id. at 1354. Of course, in Guidelines cases prior sentences are generally so used. Farrow involved a Gideon violation, but we have not limited the availability of collateral attacks to Gideon violations. In Brown v. United States, 610 F.2d 672, 674-75 (9th Cir.1980), Farrow was extended to require a hearing on ineffective assistance of counsel claims. Noting that Tuckeds scope is uncertain, we stated: “it is clear that the right to the assistance of counsel and the right to effective assistance of counsel are constitutional equivalents.” Id. at 675. Accordingly, “Brown’s allegations regarding the adequacy of Iowa counsel could present questions which would require a hearing.” Id. Indeed, in other pre-Guidelines decisions we indicated that we would permit collateral attacks premised on any constitutional infirmity. In United States v. Williams, 782 F.2d 1462 (9th Cir.1985), a direct sentencing appeal, we stated that “a sentence is subject to review if it has been enhanced in reliance on an unconstitutional conviction,” and it “must be set aside if the court relied at least in part on misinformation of constitutional magnitude.” Id. at 1466 (citation omitted). See also Feldman v. Perrill, where we allowed a federal prisoner to attack his sentence on grounds" }, { "docid": "22562532", "title": "", "text": "a “departure under this provision is warranted when the criminal history category significantly under-represents the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit further crimes.” Id. at 4.9. Most significantly, the commentary to § 4A1.2 specifically addresses the use of invalid convictions for this purpose: “Convictions which the defendant shows to have been constitutionally invalid may not be counted in the criminal history score.... Nonetheless, any conviction that is not counted in the criminal history score may be considered pursuant to § 4A1.3 if it provides reliable evidence of past criminal activity.” Guidelines Manual, Commentary to § 4A1.2 at 4.7-8 n. 6 (emphasis supplied). Soliman, nevertheless, argues that the Supreme Court’s decision in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), prohibits reliance by a trial judge on a constitutionally defective conviction in sentencing a defendant. In Tucker, the Supreme Court concluded that a defendant must be resentenced when the judge was unaware of the constitutional defects in a prior conviction relied upon in sentencing. The Supreme Court reasoned that the “case might have been different if the sentencing judge had known that at least two of the respondent’s previous convictions had been unconstitutionally obtained.” Id. at 448, 92 S.Ct. at 592 (emphasis supplied). Tucker requires informed discretion on the part of the sentencing court. See, e.g., United States v. Fleishman, 684 F.2d 1329, 1346 (9th Cir.), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982) (upholding sentence where “[t]he district court was ... under no mistaken impression that the convictions were constitutionally valid under this country’s laws as was the sentencing court in Tucker”). Once apprised of the possible constitutional infirmities surrounding a foreign conviction, the sentencing judge, in an exercise of informed discretion, may rely on the conviction in deciding whether to depart from a Guidelines range, or increase a sentence within a range. See Guidelines Manual, § 1B1.4 at 1.21 (“In determining the sentence to impose within the guidelines range, or whether a departure from the guidelines is warranted, the court may" }, { "docid": "22862535", "title": "", "text": "court — following the procedure adopted by the Fifth Circuit in Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972) — disposed of Farrow’s Tucker contention saying “that even if all challenged priors are disregarded the sentence would be the same in this case,” Farrow v. United States, 373 F.Supp. 113, 117 (S.D.Cal.1974). We have taken this case en banc to delineate the procedure for district courts to follow when a convict files a § 2255 motion claiming a Tucker violation. I Tucker and its Progeny In United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Supreme Court affirmed the decision of a panel of this Circuit, 431 F.2d 1292 (9th Cir. 1970), and remanded to the trial court for reconsideration of the defendant’s sentence where the trial court had given explicit consideration to two prior convictions which were later held to be invalid under Gideon. The Court relied in part on its decision in Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967), that “[t]o permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case.” 404 U.S. at 449, 92 S.Ct. at 593. The Court made clear that its decision was not meant to limit the wide discretion that a trial judge in the federal judicial system generally has in determining what sentence to impose, or to restrict the kind or source of information that he may consider in making that determination. Instead, the Court emphasized that in Tucker, it was dealing with “a sentence founded at least in part upon misinformation of constitutional magnitude,” rather than one imposed in the informed discretion of the trial judge. 404 U.S. at 446-47, 92 S.Ct. at 592. The “real question,” according to the Court, was whether the original sentence might have been different if the sentencing judge had known that two of the defendant’s prior convictions were unconstitutionally obtained. Id. at 448, 92" }, { "docid": "12030814", "title": "", "text": "because the conviction was based on an invalid guilty plea. “It is ... well-established that a sentence is subject to review if it has been enhanced in reliance on an unconstitutional conviction.” United States v. Williams, 782 F.2d 1462, 1466 (9th Cir.1986) (citing United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972)). To prevail on his claim Campbell must show that (1) the prior conviction was unconstitutional and (2) his sentence was enhanced in reliance on the prior conviction. See Williams, 782 F.2d at 1466. We need not address the first prong of this test because Campbell fails to satisfy the second prong. He has not shown that his sentence was enhanced by the jury’s reliance on the prior conviction. See Farrow v. United States, 580 F.2d 1339, 1354 (9th Cir.1978) (en banc) (recommending determination of enhancement question prior to addressing constitutionality issue). The underlying facts of this case speak for themselves. The jurors were not only confronted with the sheer savagery of the murders, but they, like the Supreme Court of Washington, must have been “hard pressed to find killings more premeditated and revengeful than those committed by defendant.” Campbell, 691 P.2d at 946. The state focused on the facts of Campbell’s crime in its case before the jury and only briefly presented the nonviolent second degree burglary conviction in the sentencing proceeding. In a case unprecedented in the state of Washington with respect to the number of aggravating factors found by the jury, see id. at 945, there is no reasonable probability that the jury relied on the 1976 burglary conviction in determining whether there were sufficient mitigating circumstances to merit leniency. See Farrow, 580 F.2d at 1355 (adopting “reasonable probability” standard). C. Effective Assistance of Counsel Campbell contends that he was denied effective assistance of counsel by his attorneys’ failure to present mitigating evidence during the sentencing proceeding. The appropriate standards for judging Campbell’s claim are set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A convicted defendant’s claim that counsel’s assistance was" }, { "docid": "2498312", "title": "", "text": "for dismissal. 580 F.2d 1339, 1352, citing Blackledge v. Allison, 431 U.S. 63, 74 n. 4, 97 S.Ct. 1621, 52 L.Ed.2d 736 (1977). Nonetheless, according to the Ninth Circuit where the district judge’s disclaimer of reliance on the invalid priors is in fact contradicted by the record, we have held that the case must be remanded . . . [citing] Leano v. United States, 494 F.2d 361 (9th Cir. 1974). Farrow, supra, at 1348. Accord, Grant v. White, 579 F.2d 48 (8th Cir. 1978). The problem in the appeal before us is that the district judge followed the second procedure in dismissing the § 2255 motion, but his memory is seemingly contradicted by the record. The Ninth Circuit limited Leano, supra, in Wilson v. United States, 534 F.2d 130 (9th Cir. 1976), holding that even where the § 2255 judge’s disclaimer of reliance is contradicted by the record, if there is a “substantial basis in the record on its face to support the court’s statement of non-reliance, then the reconsideration mandated by Tucker has been performed.” 534 F.2d at 133. As the Ninth Circuit explained further in Farrow, supra, at 1355-56 n. 27, “the judge’s finding based on his own recollection may itself provide this ‘substantial basis.’ ” This is best understood as recognizing that where a § 2255 judge’s statement that he did not consider the challenged prior convictions is contradicted by the record, the seeming contradiction may be resolved by taking the judge’s statement to mean that he did not rely on or accord significant weight to the challenged convictions. Where the § 2255 judge was also the sentencing judge, such deference to his recollection is appropriate. As the Ninth Circuit said, in Farrow supra, at 1355-56, n. 27, reversal is required only in cases such as Leano [supra] where, as stated in Wilson, “[t]here was no support in the record for the court’s statement that it has not relied on the prior conviction.” Quoting 534 F.2d at 131. In other words, in the face of the court’s disclaimer of reliance reversal is required only where, as in" }, { "docid": "3142331", "title": "", "text": "PER CURIAM: The district court denied the motion to vacate sentence pursuant to 28 U.S.C. § 2255 filed by Herron, a federal prisoner. We affirm. Appellant represented by counsel, was sentenced on December 6, 1974, to a five year term of imprisonment and a $10,000 fine for the use of a fraudulently obtained credit card in violation of 18 U.S.C. § 2314. In his § 2255 motion, he contends that the maximum sentence was imposed because the court erroneously relied upon a prior conviction as a felony when actually it was a misdemeanor. Appellant relies upon Townsend v. Burke, 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690 (1947), in which the Supreme Court held that an uncounselled defendant was denied due process of law where sentence was imposed upon the basis of assumptions concerning his criminal record which were materially untrue, and upon United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 92 (1972), which held that where a judge, in assessing sentence, gave explicit consideration to a prior conviction, which was subsequently determined to be invalid, the defendant was entitled to be resentenced without consideration of that invalid conviction. Appellant’s issue has been raised in two prior motions for reduction of sentence, Rule 35 F.R.Cr.P., before the sentencing court. Said motions led to a hearing with opportunity for oral argument. Relief was denied in both instances. The record indicates that the district court did, in fact, make reference to a prior fraud conviction, but nowhere did the court define it as a “felony.” Regardless of the definition of the offense, the operative facts of the charges and the elements of the offense may be considered by the district court during the imposition of sentence, Rule 32(c), F.R.Cr.P. The prior conviction in question was a 1966 guilty plea entered upon South Carolina charges of uttering, drawing, and presenting a fraudulent check in the amount of $3,700. Consideration of such previous fraudulent conduct is germane to a determination of sentence for a violation of 18 U.S.C. § 2314. The record fails to disclose that the sentencing judge" }, { "docid": "11495591", "title": "", "text": "wide discretion, within the statutory limits, in imposing sentence and the exercise of that discretion will not be disturbed on appeal except on a plain showing of abuse. United States v. Tucker; 404 U.S. 443, 447, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972); United States v. Willard, 445 F.2d 814, 816 (7th Cir. 1971). However, a remand for resentencing is necessary if the district judge based his sentencing decision at least in part on prior convictions which were constitutionally invalid, Tucker, supra, or on “assumptions concerning [the defendant’s] criminal record which were materially untrue.” Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948). In the present case, the district court, in denying the Rule 35 motion, was fully aware that Cardi’s conviction on two substantive counts had been set aside. Moreover, the district judge, in ruling on the Rule 35 motion, made it clear that his decision was not influenced by the invalid convictions: “As to both sentences, I took certain factors into consideration at the time I imposed them, I thought that they were proper at the time that the sentences were imposed. There is nothing in the Court of Appeals’ opinion that changes my view as to the factors that I did take into consideration. Those factors still influence me and I think that the ten-year sentence under the particular conditions of this case was entirely proper.” The clear implication of this statement is that the district judge, in originally setting the sentences on the valid counts, had not relied on the convictions on the counts which were subsequently declared invalid, but he had relied instead on certain other factors which were not affected by the subsequent partial reversal, and that in denying the Rule 35 motion, he continued to rely only upon such factors. Cardi’s reliance on James v. United States, 476 F.2d 936 (8th Cir. 1973), is therefore inapposite since, in James, the district court made no express statement with respect to the consideration, if any, given to the invalid convictions. Cardi argues, however, that although the district judge here" }, { "docid": "2498306", "title": "", "text": "said that it: gave no consideration to these adjudications. Rather, it was more impressed by the fact that petitioner had recently been sentenced for armed robbery in the state court. Accordingly, the Court finds no basis of vacating petitioner’s sentence. Although the court said it did not consider the prior convictions, it is undeniable that it did in some sense “consider” them, since it explicitly commented on them, saying, And here, you’ve had three commitments already to a penal institution and you were paroled three times and two of them you couldn’t make it, isn’t that right, Mr. Lawary? The second problem with the government’s argument is that Lawary raised two claims in his petition — first that consideration of the unconstitutional convictions enhanced the adult sentence he was given and second that consideration of those convictions prevented his being sentenced under the YCA — but the district court did not treat them as separate claims. The district court’s ex post facto no benefit finding does not expressly answer the second of La-wary’s allegations, since the no benefit finding could conceivably have been based on unconstitutional considerations. The question before us then, is what disclaimer of reliance on invalid prior convictions is sufficient to satisfy Tucker ? In Tucker itself the trial judge heard testimony at the sentencing hearing regarding the prior convictions. 404 U.S. at 444 n. 1, 92 S.Ct. 589. In dismissing the § 2255 motion he found that use of those invalid prior convictions for impeachment purposes had been harmless error, since evidence of guilt had been overwhelming. Tucker v. United States, 299 F.Supp. 1376 (N.D.Calif.1969). He did not refer to their possible influence on sentencing, and the Court of Appeals, affirmed by the Supreme Court, remanded for resentencing since there was “a reasonable probability” that their consideration had resulted in a heavier sentence. In Tucker, in other words, there had not really been a disclaimer of influence on sentencing. This Court has not explicitly discussed this issue. In Crovedi v. United States, 517 F.2d 541 (7th Cir. 1975) the sentencing judge dismissed the § 2255 motion," }, { "docid": "22862536", "title": "", "text": "that “[t]o permit a conviction obtained in violation of Gideon v. Wainwright to be used against a person either to support guilt or enhance punishment for another offense . . . is to erode the principle of that case.” 404 U.S. at 449, 92 S.Ct. at 593. The Court made clear that its decision was not meant to limit the wide discretion that a trial judge in the federal judicial system generally has in determining what sentence to impose, or to restrict the kind or source of information that he may consider in making that determination. Instead, the Court emphasized that in Tucker, it was dealing with “a sentence founded at least in part upon misinformation of constitutional magnitude,” rather than one imposed in the informed discretion of the trial judge. 404 U.S. at 446-47, 92 S.Ct. at 592. The “real question,” according to the Court, was whether the original sentence might have been different if the sentencing judge had known that two of the defendant’s prior convictions were unconstitutionally obtained. Id. at 448, 92 S.Ct. 589. A successful challenge to a presumptively valid sentence based on Tucker thus requires three elements: (1) a prior conviction rendered invalid by Gideon; (2) the sentencing judge’s mistaken belief that the prior conviction was valid; and (3) enhancement of the defendant’s sentence because of it. In Tucker, the existence of the first two elements was clear from the record, and the case was remanded for the trial judge to resolve whether the third element was also present. Following Tucker, a trial judge faced with a similar § 2255 motion to vacate sentence could very simply “reevaluate” and “reconsider” the original sentence, as that case instructs, to decide whether it was enhanced by his mistaken reliance on the invalid priors. See, e. g., Wheeler v. United States, 468 F.2d 244, 245 (9th Cir. 1972). In many cases since Tucker, however, the invalidity of the prior convictions was not conclusively determined at the time of the defendant’s § 2255 motion, as it was in Tucker. The procedure to be followed in disposing of the motion" }, { "docid": "2498307", "title": "", "text": "the no benefit finding could conceivably have been based on unconstitutional considerations. The question before us then, is what disclaimer of reliance on invalid prior convictions is sufficient to satisfy Tucker ? In Tucker itself the trial judge heard testimony at the sentencing hearing regarding the prior convictions. 404 U.S. at 444 n. 1, 92 S.Ct. 589. In dismissing the § 2255 motion he found that use of those invalid prior convictions for impeachment purposes had been harmless error, since evidence of guilt had been overwhelming. Tucker v. United States, 299 F.Supp. 1376 (N.D.Calif.1969). He did not refer to their possible influence on sentencing, and the Court of Appeals, affirmed by the Supreme Court, remanded for resentencing since there was “a reasonable probability” that their consideration had resulted in a heavier sentence. In Tucker, in other words, there had not really been a disclaimer of influence on sentencing. This Court has not explicitly discussed this issue. In Crovedi v. United States, 517 F.2d 541 (7th Cir. 1975) the sentencing judge dismissed the § 2255 motion, and while not precluding in his memorandum opinion that the conviction record may have been a part of the “surrounding circumstances” entering into the determination of “what action is appropriate and to what extent punishment should be imposed,” the judge was of the opinion that “the sentence imposed upon the petitioner was entirely appropriate . . .regardless of the invalidity or absence of convictions noted in the presentence report.” 517 F.2d at 546-47. We interpreted this as a reaffirmation of the sentence without re gard to the prior convictions, and held that sufficient, since “a remand for reconsideration could accomplish no more than that which has already occurred.” In United States v. Cardi, 519 F.2d 309 (7th Cir. 1975), a conviction on four counts had been reversed on appeal as to two. Cardi then moved to reduce sentence, arguing that it had been influenced by the invalidated convictions. In dismissing the motion the district court said: As to both sentences, I took certain factors into consideration at the time I imposed them, I thought that" }, { "docid": "12829797", "title": "", "text": "was imposed. Prior thereto he was not dissatisfied, and the related question that the plea of guilty should have been appealed is also without merit. Appellant entered a plea of guilty and there is no indication that an appeal was considered appropriate. See Cascio v. United States, 429 F.2d 581 (9th Cir. 1970); Lewis v. United States, 111 U.S.App.D.C. 13, 294 F.2d 209 (1961), cert. denied, 368 U.S. 949, 82 S.Ct. 390, 7 L.Ed.2d 344 (1961). Finally, it is contended that the denial of appellant’s right to view the presentence report violated his constitutional rights. The standard prescribed by Rule 32(c), Federal Rules of Criminal Procedure, for submission of the presentence report is one of court discretion. It has been held that this is not a question of constitutional dimension. United States v. Stidham, 459 F.2d 297 (10th Cir. 1972); Thompson v. United States, 381 F.2d 664 (10th Cir. 1967). At bar the district court reviewed with the defendant his past criminal record as shown by the probation report and allowed him to explain or elaborate this material; in the subsequent post conviction hearing the court stated that it did not rely on any prior convictions, valid or invalid, in pronouncing sentence. We regard this as conclusive. See United States v. DeVore, 423 F.2d 1069 (4th Cir. 1970), cert. denied, 402 U.S. 950, 91 S.Ct. 1604, 29 L.Ed.2d 119 (1971); United States v. Trice, 412 F.2d 209 (10th Cir. 1969). We have examined United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), and the position we now take is entirely consistent with the Tucker decision. There the court actually relied on two convictions which were later held to be invalid. Since it was clear that the district court had relied on these sentences, the Court of Appeals for the Ninth Circuit posed the possibility that a heavier sentence resulted and remanded for resentencing. The Supreme Court affirmed, holding that resentencing is required where there is misinformation of constitutional dimension and this misinformation is given specific consideration by the sentencing judge. Tucker does not require that" }, { "docid": "7726146", "title": "", "text": "be given to such information to enhance sentence.” Id. The judge chose to ignore, and expressly disclaimed reliance upon, the great bulk of these hearsay statements. Counsel for Gelfuso and Vaccaro had ample opportunity to rebut statements made in court and allegations in the presentence report. There is no affirmative demonstration in the record before us that the district judge based his sentence on improper information. AFFIRMED. . See United States v. Tucker, 404 U.S. 443, 448-49, 92 S.Ct. 589, 593, 30 L.Ed.2d 592 (1972) (district court may not use constitutionally invalid prior convictions “to support guilt or enhance punishment for another offense”); Farrow v. United States, 580 F.2d 1339, 1344 (9th Cir. 1978) (en banc). . See Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948) (improper for court to sentence convicted defendant “on the basis of assumptions concerning his criminal record which were materially untrue”); Farrow v. United States, supra, 580 F.2d at 1358. . The full text of the judge’s remarks in this regard is as follows: The defendant here has been engaged, of course, in a gambling operation which has been characterized as a two-bit penny-ante game, but I don’t consider it such. It has some aspects of organized crime which, of course, we cannot tolerate. It wasn’t a very successful operation so far as the court has been informed, but it’s the type of thing we cannot, of course, tolerate. . The other allegations contained in the presentence report included one that the gambling operation had been of extremely large magnitude, that the petitioners had been part of a conspiracy to murder a government witness, and that they had engaged in a number of other criminal activities. The district judge explicitly disclaimed any reliance on or rejected each of these contentions. . At one point, the judge observed: It is my conclusion that we are concerned with not simply a simple gambling game but we are concerned with a conspiracy or an agreement or a partnership to engage in a gambling enterprise which has organized gambling implications. To what" }, { "docid": "22862534", "title": "", "text": "CHOY, Circuit Judge: Farrow appeals from the district court’s determination upholding his sentence for jumping bail and failing to pay the special tax on 119 pounds of marijuana in violation of 18 U.S.C. § 3150 and 26 U.S.C. §§ 4755(a)(1), 7202. We affirm. On January 24, 1972, appellant was sentenced to three years on the bail jump count and to five years on the tax count, subject to the early parole provisions of 18 U.S.C. § 4208(a)(2) (now 18 U.S.C. § 4201 et seq.). He subsequently filed a motion to vacate sentence pursuant to 28 U.S.C. § 2255 principally alleging that in passing sentence, the trial court considered four prior convictions rendered invalid by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Gideon was made fully retroactive in Pickelsimer v. Wainwright, 375 U.S. 2, 84 S.Ct. 80, 11 L.Ed.2d 41 (1963), and reliance on such retroactively invalid convictions to enhance punishment was proscribed in United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1971). The district court — following the procedure adopted by the Fifth Circuit in Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972) — disposed of Farrow’s Tucker contention saying “that even if all challenged priors are disregarded the sentence would be the same in this case,” Farrow v. United States, 373 F.Supp. 113, 117 (S.D.Cal.1974). We have taken this case en banc to delineate the procedure for district courts to follow when a convict files a § 2255 motion claiming a Tucker violation. I Tucker and its Progeny In United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the Supreme Court affirmed the decision of a panel of this Circuit, 431 F.2d 1292 (9th Cir. 1970), and remanded to the trial court for reconsideration of the defendant’s sentence where the trial court had given explicit consideration to two prior convictions which were later held to be invalid under Gideon. The Court relied in part on its decision in Burgett v. Texas, 389 U.S. 109, 115, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967)," }, { "docid": "22862546", "title": "", "text": "appellate review in our own nor, we think, in any other Circuit. Rather, where the district judge’s disclaimer of reliance on the invalid priors is in fact contradicted by the record, we have held that the case must be remanded for resentencing without consideration of any prior conviction invalid under Gideon. Leano v. United States, 494 F.2d 361 (9th Cir. 1974). Far from representing a departure from Eidum and Dukes, Leano represented an exception to the procedures in those cases where there was “no support in the record for the court’s statement that it had not relied on the prior,” and indeed, “it was clear that the trial judge imposed the ten-year sentence because of the prior conviction.” Wilson v. United States, 534 F.2d at 131 (emphasis added). Given the consistent and unanimous approval of Lipscomb -type procedures among the ten Circuits that have considered the question, including our own, the use of those procedures by the district court in this case might be affirmed without need of saying more. However, because it was our purpose in taking this case en banc to clarify the law, and because of dissent from the adoption of Lipscomb in this case as well as in the past in this Circuit, we now carefully outline the procedure for district courts to follow in § 2255 motions claiming Tucker violations and the rationale therefor. II Use of Another Judge to Hear § 2255 Tucker Petitions None of the nine other Circuits that have adopted the Lipscomb procedure has held that § 2255 Tucker motions must be heard by a new judge rather than by the original sentencing judge. However, this requirement has in the past been urged by two judges of our Circuit. For the rea sons that follow, we reaffirm our holding in Wilson v. United States, 534 F.2d at 133-34, that § 2255 Tucker petitions should ordinarily be decided by the original sentencing, judge. First, as noted in Wilson, the Supreme Court’s Tucker opinion clearly contemplated that the § 2255 petition would be heard by the same judge, as evidenced by the statement" }, { "docid": "12449292", "title": "", "text": "PER CURIAM: The district court denied the motion to vacate sentence pursuant to 28 U.S.C. § 2255 filed by Rogers, a federal prisoner. We affirm. Appellant is serving a five year sentence imposed upon him on June 28, 1971, for a violation of the Dyer Act, 18 U.S.C. § 2312. In his § 2255 motion he contends that the court relied on a prior constitutionally infirm conviction in fixing the length of his sentence. Appellant relies upon United States v. Tucker, 1972, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592, in which the Supreme Court held that where a judge, in assessing sentence, gives explicit consideration to a prior conviction which is subsequently determined to be invalid, the defendant is entitled to be resentenced without consideration of that invalid conviction. In the case now before this Court, the record fails to disclose that the sentencing judge gave explicit consideration to the prior conviction. Even though the earlier conviction was referred to in the presentence report, the court, in denying relief, specifically certified that the sentence was not enhanced by the existence of that earlier conviction. Therefore, the present sentence not being founded upon a prior invalid conviction, Tucker is inapplicable. It is thus unnecessary to examine the legality of the prior conviction. The judgment below is affirmed. . It is significant that Rogers’ two co-defendants received sentences identical to that imposed on appellant: 5 years confinement under the terms of Title 18 U.S.C. Section 4208(a) (2), which authorizes early parole. . See United States v. Marcello, 5 Cir. 1970, 423 F.2d 993, where we pointed out: “A Judge is by no means confined to a history of criminal convictions. The activities of the Defendant, including his relation to public and police authorities, his position in the community and other factors bear upon his life and lead the sentencing Judge to a balance on (i) punishment, (ii) deterrence and (iii) rehabilitation.”" }, { "docid": "22862537", "title": "", "text": "S.Ct. 589. A successful challenge to a presumptively valid sentence based on Tucker thus requires three elements: (1) a prior conviction rendered invalid by Gideon; (2) the sentencing judge’s mistaken belief that the prior conviction was valid; and (3) enhancement of the defendant’s sentence because of it. In Tucker, the existence of the first two elements was clear from the record, and the case was remanded for the trial judge to resolve whether the third element was also present. Following Tucker, a trial judge faced with a similar § 2255 motion to vacate sentence could very simply “reevaluate” and “reconsider” the original sentence, as that case instructs, to decide whether it was enhanced by his mistaken reliance on the invalid priors. See, e. g., Wheeler v. United States, 468 F.2d 244, 245 (9th Cir. 1972). In many cases since Tucker, however, the invalidity of the prior convictions was not conclusively determined at the time of the defendant’s § 2255 motion, as it was in Tucker. The procedure to be followed in disposing of the motion in these situations, where the invalidity of the defendant’s pri- or convictions is only alleged, was not immediately clear. The Fifth Circuit was the first to address this problem directly. In Lipscomb v. Clark, 468 F.2d 1321 (5th Cir. 1972), that court dealt with it as follows: First, the district court should review the records involved in this conviction and determine if, treating the state convictions alleged to have been unconstitutional as void and thus not to be considered in sentencing, the [original] sentence would still be the appropriate sentence ... If [so], an order so setting forth would seem sufficient to comply with the requirements of Tucker. If, on the other hand, the district court finds that . . . the [original] sentence would not be appropriate, then it should grant petitioner an evidentiary hearing and allow him to present evidence on his claim that the prior convictions in question were unconstitutional due to Gideon. If the district court is convinced of the validity of petitioner’s allegations after such a hearing, it may then" }, { "docid": "17090963", "title": "", "text": "The Eighth Circuit initially concluded that Application Note 6 \"forbids collateral attacks on prior convictions used to compute a defendant's criminal history score under the Guidelines.” United States v. Day, 949 F.2d 973, 980 (8th Cir.1991) (emphasis added). Recently, the Eighth Circuit added the following exception: \"except when the Constitution requires that a collateral attack at sentencing be permitted.” United States v. Elliott, 992 F.2d 853, 856 (8th Cir.1993). . See United States v. Roman, 989 F.2d 1117 (11th Cir.1993) (en banc); United States v. Vea-Gonzales, 986 F.2d 321 (9th Cir.1993). . Specifically, United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972) and Burgett v. Texas, 389 U.S. 109, 88 S.Ct. 258, 19 L.Ed.2d 319 (1967). . Relying on Burgett, the First Circuit recently held that \"the Constitution requires a review of the constitutionality of prior convictions at sentencing only where the prior convictions are 'presumptively void.’\" United States v. Isaacs, No. 92-2129, 1993 WL 210537 (1st Cir. June 22, 1993). The Ninth Circuit relied on Burgett and Tucker to hold that the United States Constitution requires that federal sentencing courts give defendants an opportunity to collaterally attack pri- or convictions that will be used against them at sentencing, a view adopted by my colleague Judge Martin. United States v. Vea-Gonzates, 986 F.2d 321 (9th Cir.1993). I am relieved to note that the plurality opinion rejects this \"approach.” Plurality op. at 1041. As discussed in section II, the plurality opinion relies on Burgett and Tucker to support a different conclusion. . In Chambers, the Supreme Court outlined the scope of the district court's limited \"inherent authority,” noting that \"inherent powers must be exercised with restraint and discretion”: It has long been understood that “[cjertain implied powers must necessarily result to our Courts of justice from the nature of their institution,” powers \"which cannot be dispensed with in a Court, because they are necessary to the exercise of all others.” For this reason, \"Courts of justice are universally acknowledged to be vested, by their very creation, with power to impose silence, respect, and decorum, in their" }, { "docid": "7726145", "title": "", "text": "1971), cert. denied, 404 U.S. 1061, [92 S.Ct. 748, 30 L.Ed.2d 749] (1972)] is that a sentence will be vacated on appeal if the challenged information is (1) false or unreliable, and (2) demonstrably made the basis for the sentence. In the context of a § 2255 proceeding, a motion must be denied unless it affirmatively appears in the record that the court based its sentence on improper information. Farrow v. United States, supra, 580 F.2d at 1359 (emphasis in original). There is nothing in the record to indicate that the district judge based his sentence on unreliable or false information. His reference to “some aspects of organized crime,” the only element of the presentence report that petitioners continue to attack, may have been only a reference to the structure of the operation for which they were convicted. Even were it not, the sentencing judge may properly consider “hearsay evidence of unproved criminal activity not passed on by a court.” Id. at 1360. Due process in such a case requires only that “unwarranted weight not be given to such information to enhance sentence.” Id. The judge chose to ignore, and expressly disclaimed reliance upon, the great bulk of these hearsay statements. Counsel for Gelfuso and Vaccaro had ample opportunity to rebut statements made in court and allegations in the presentence report. There is no affirmative demonstration in the record before us that the district judge based his sentence on improper information. AFFIRMED. . See United States v. Tucker, 404 U.S. 443, 448-49, 92 S.Ct. 589, 593, 30 L.Ed.2d 592 (1972) (district court may not use constitutionally invalid prior convictions “to support guilt or enhance punishment for another offense”); Farrow v. United States, 580 F.2d 1339, 1344 (9th Cir. 1978) (en banc). . See Townsend v. Burke, 334 U.S. 736, 741, 68 S.Ct. 1252, 1255, 92 L.Ed. 1690 (1948) (improper for court to sentence convicted defendant “on the basis of assumptions concerning his criminal record which were materially untrue”); Farrow v. United States, supra, 580 F.2d at 1358. . The full text of the judge’s remarks in this regard is as" }, { "docid": "23400755", "title": "", "text": "the evidence was admitted.” We held in Houser that the district court had not abused its discretion. Id. Admitting the evidence of the 1983 drug trip was not plain error. E. Did the district court err by considering Khan’s prior Pakistan conviction at Khan’s sentencing? 1. Standard of Review Pre-guidelines sentences issued within statutory limits are left to the sound discretion of the district court. United States v. Pomazi, 851 F.2d 244, 247 (9th Cir.1988), overruled on other grounds by United States v. Sharp, 941 F.2d 811, 815 (9th Cir.1991). See also United States v. Williams, 782 F.2d 1462, 1466 (9th Cir.1986) (“It is a general principle that a judge may conduct a virtually unlimited inquiry when imposing sentence.”). If the sentence raises constitutional issues, however, we conduct a less deferential review. United States v. Tucker, 404 U.S. 443, 447, 92 S.Ct. 589, 591, 30 L.Ed.2d 592 (1972); Pomazi, 851 F.2d at 247. A sentence must be set aside if the district court relied at least in part on misinformation of constitutional magnitude. Williams, 782 F.2d at 1466. 2. Was it error for the district court to consider the prior Pakistani conviction? Khan contends that the district court improperly considered his prior, uncounselled, Pakistani conviction at sentencing. He argues that as a result his sentence was enhanced based on an unconstitutional conviction. Under Tucker, 404 U.S. 443, 92 S.Ct. 589, and Farrow v. United States, 580 F.2d 1339 (9th Cir.1978), it is impermissible for a district court to enhance a sentence based on a prior, uncounselled conviction. These cases involved prior, United States convictions. But we have allowed defendants to challenge the use of foreign convictions under Tucker. See United States v. Fleishman, 684 F.2d 1329 (9th Cir.) (defendants challenged district court’s consideration at sentencing of prior, uncounselled, Mexican convictions), cert. denied, 459 U.S. 1044, 103 S.Ct. 464, 74 L.Ed.2d 614 (1982). Khan, however, has provided no evidence here or before the district court that the prior, Pakistani conviction was uncounselled or otherwise invalid. Thus, we do not conclude that the district court erred by considering the prior, Pakistani conviction" }, { "docid": "3245149", "title": "", "text": "GOODWIN, Circuit Judge: Richard Duane Brown appeals from a judgment denying his petition for relief under 28 U.S.C. § 2255. After his appeal had been calendared, we deferred submission pending the decision in Farrow v. United States, 580 F.2d 1339 (9th Cir. 1978) (en banc). We now remand for further proceedings as noted below. In 1970, Brown was convicted of violations of 18 U.S.C. § 2314 (interstate transportation of forged securities), and was sentenced to fifteen years’ imprisonment. The conviction was affirmed in an unpublished memorandum. In 1976, Brown filed the § 2255 petition now before us. We will discuss the facts as they relate to the several issues. I. Enhancement of Sentence Through Reliance on Unconstitutional Prior Convictions. Brown alleges that the district court in 1970 sentenced him to a longer term than it would have imposed if the court had not been influenced by three prior state convictions that Brown now alleges were constitutionally defective. Accordingly, Brown claims that, under United States v. Tucker, 404 U.S. 443, 92 S.Ct. 589, 30 L.Ed.2d 592 (1972), the sentencing court must resen-tence him without considering his convictions in California, Michigan, and Iowa. Brown alleges that the California and Michigan convictions are invalid because he was denied counsel as required by Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). He alleges that the Iowa conviction was the result of an ill-advised guilty plea. He asserts that he had confessed to the Iowa robbery under compulsion of police threats of severe bodily injury and that his court-appointed counsel improperly disregarded the coercive circumstances in which the confession was obtained. In ruling on Brown’s § 2255 motion, the district court found that the California and Michigan convictions were insignificant and had been given no effect whatsoever in fixing Brown’s 1970 sentence. This finding, based on the court’s own recollection of Brown’s sentencing, will not be overridden. Farrow v. United States, 580 F.2d at 1355. Consequently, Brown’s claim that his 1970 sentence was enhanced through the sentencing court’s consideration of the California and Michigan convictions must fail. There is no" } ]

[ { "docid": "13381556", "title": "", "text": "The court, by indorsement, indicated its approval of request No. 1, and by like indorsement denied Nos. 2 and 3. No exception was taken to the refusal of these declarations of law. In an action at law tried to the court, without a jury, on stipulation of the parties, the decision of the court has the same effect as the verdict of a jury, and, like a jury’s verdict, can be assailed in this court only on the ground that it is not sustained by substantial evidence. But, to entitle appellant to have the evidence reviewed in this court for the purpose of determining whether or not the decision of the trial court is sustained by substantial evidence, he must have made timely requests for declarations of law and judgment in his favor. If this has not been done, this court is as powerless to consider the question of the sufficiency of the evidence as it is in an action tried to a jury in which the appellant has not moved for a directed verdict. Mansfield Hardwood Lumber Co. v. Horton (C. C. A. 8) 32 F.(2d) 851; United States v. Federal Commerce Trust Co. (C. C. A. 8) 64 F.(2d) 679; Wourdack v. Becker (C. C. A. 8) 55 F.(2d) 840; Palmer v. Aeolian Co. (C. C. A. 8) 46 F. (2d) 746; Home Building & Savings Ass’n v. New Amsterdam Casualty Co. (C. C. A. 8) 45 F.(2d) 989; Quality Realty Co. v. Wabash Ry. Co. (C. C. A. 8) 50 F. (2d) 1051; Fleischmann Construction Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624; Harvey Co. v. Malley et al., 288 U. S. 415, 53 S. Ct. 426, 77 L. Ed. 866; Gerlach v. Chicago, R. I. & P. Ry. Co. (C. C. A. 8) 65 F.(2d) 862; Cronkleton v. Hall (C. C. A. 8) 66 F. (2d) 384. Under the repeated decisions of this court there is clearly nothing presented by the rec-tore! in the instant case, and the judgment appealed from is affirmed." } ]

[ { "docid": "14585973", "title": "", "text": "plaintiffs an exception. From the judgment entered upon this finding, the plaintiffs have appealed. The assignments of error charge the court with having made a finding and entered a judgment which is not supported by the evidence. When an action at law is tried to a court without a jury under the provisions of section 773, title 28, U.S.C. (28 U.S.C.A. § 773) and the court makes a general finding, the question of the sufficiency of the evidence to sustain the finding is not subject to review on appeal, where the appellant at no time during the trial, by a request for specific findings of fact or declarations of law, or by motion for judgment in his favor on the ground of the insufficiency of the evidence to sustain a contrary judgment, or by other equivalent action, specifically raises that question in the court below and invokes a ruling thereon. Mansfield Hardwood Lumber Co. v. Horton (C.C.A.8) 32 F.(2d) 851, 852, 853; American Surety Co. of New York v. Cotton Belt Levee Dist. No. 1 of Phillips County, Ark. (C.C.A.8) 58 F.(2d) 234; United States v. Douglas, Buchanan & Crow, Inc., et al. (C.C.A.8) 61 F.(2d) 821; Cronkleton v. Hall (C.C.A.8) 66 F.(2d) 384, 386; Hawthorne v. Bankers’ Life Co. (C.C.A.8) 63 F.(2d) 971; Gerlach v. Chicago, R. I. & P. Ry. Co. (C.C.A.8) 65 F.(2d) 862; Anderson v. United States (C.C.A.8) 65 F.(2d) 870; Town Club of St. Louis v. United States (C.C.A.8) 68 F.(2d) 620; Hussey-Hobbs Tie Co. v. Louisville & N. R. Co. (C.C.A.8) 69 F.(2d) 92; Jones et al. v. Gill et al. (C.C.A.8) 67 F.(2d) 159; Mandel Bros., Inc., v. Henry A. O’Neil, Inc., et al. (C.C.A.8) 69 F.(2d) 452; Baker Ice Mach. Co., Inc., v. Hebert (C.C.A.8) 76 F.(2d) 73, 74, 75; Union Bleachery v. United States (C.C.A.4) 79 F.(2d) 549, 550, 551, 102 A.L.R. 204; Fleischmann Const. Co. v. United States, 270 U.S. 349, 46 S.Ct. 284, 70 L.Ed. 624; Eastman Kodak Co. et al. v. Gray, 292 U.S. 332, 54 S.Ct. 722, 78 L.Ed. 1291; Harvey Co. v. Malley et al., 288" }, { "docid": "21343858", "title": "", "text": "* * a party must either obtain from the trial court special findings which raise the legal propositions, or present the propositions of law to the court and obtain a ruling on them.” In Inter-Southern life Insurance Co. v. Klaber (C. C. A. 8) 50 F.(2d) 154, in an opinion by Judge Van Valkenburgh, this question of practice is considered and the authorities collated and reviewed. The question was again before this court in American Surety Co. v. Cotton Belt Levee Dist. No. 1 (C. C. A. 8) 58 F.(2d) 234, 235, where, in an opinion by Judge Stone, it is said: “The matters involved in this appeal have to do with the sufficiency of the evidence or lack of substantial evidence to sustain these judgments. Where a jury is waived in accordance with section 773, no request for special findings made before judgment and no demurrer (or equivalent) challenging the sufficiency or lack of the evidence, this court is foreclosed from examining such sufficiency or lack.” To the same effect, see Hawthorne v. Bankers’ Life Co. (C. C. A. 8) 63 F.(2d) 971; Hirning v. Live Stock Nat. Bank (C. C. A. 8) 1 F.(2d) 307; Perry v. Wiggins (C. C. A. 8) 57 F. (2d) 622; Buechle v. Montgomery (C. C. A. 8) 45 F.(2d) 987; Merriam v. Huselton (C. C.A.8) 45 F.(2d) 983. The bald assertion that the judgment is erroneous as contrary to the facts, or as not being supported by competent evidence, or a similar assertion that the court erred in entering its findings, is not sufficient to warrant this court in reviewing the evidence. American Surety Co. v. Cotton Belt Levee Dist. No. 1, supra. The findings and conclusions are ample to sustain the judgment. Eggen v. United States (C. C. A. 8) 58 F.(2d) 616; United States v. Hairston (C. C. A. 8) 55 F.(2d) 825; United States v. Perry (C. C. A. 8) 55 F.(2d) 819; United States v. Le Due (C. C. A. 8) ,48 F.(2d) 789; McNally v. United States (C. C. A. 8) 52 F.(2d) 440; Harrison v. United" }, { "docid": "11972388", "title": "", "text": "that the credit of $74,648.39 (being the amount of an overpayment of the 1918 taxes as determined by the Commissioner in May, 1923), to alleged underpayments for the years 1915,1916, and 1917 constituted an overpayment for’ those years under sections 607 and 609 of the Revenue Act-of 1928 (26 USCA §§ 2607, 2609), and should be refunded to the plaintiff, does not constitute a motion to direct a judgment; since whether a judgment should have been directed for the plaintiff depended upon other considerations than whether the application of an overpayment of the 1918 taxes to 1915, 1916, and 1917 deficiencies was void and constituted an overpayment for those years under sections 607 and 609 of the Revenue Act of 1928. It is doubtful, therefore, whether, under sections 649 and 700, R. S. (28 USCA §§ 773, 875), any question of law is raised on tho record for tho consideration of this court by tho appellant’s assignments of error. Tho findings of fact are general, and no rulings of the court were excepted to “during the course of the trial,” which are relied on. Exceptions, following an order of judgment, to alleged rulings in a written opinion of the judge assigning reasons for ordering a judgment for either party, are not rulings in the course of the trial. Fleischmann Const. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 287, 70 L. Ed. 624; United States v. Smith (C. C. A.) 39 F.(2d) 851; Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 22 S. Ct. 55, 46 L. Ed. 113. As the court said in Fleischmann Const. Co. v. United States: “It is settled by repealed decisions, that in the absence of special findings, the general finding of the court is conclusive upon all matters of fact, and prevents any inquiry into the conclusions of law embodied therein, except in so far as the rulings during the progress of the trial were excepted to and duly preserved by bill of exceptions, as required by the statute. '* * 41 To obtain a review by" }, { "docid": "14585974", "title": "", "text": "of Phillips County, Ark. (C.C.A.8) 58 F.(2d) 234; United States v. Douglas, Buchanan & Crow, Inc., et al. (C.C.A.8) 61 F.(2d) 821; Cronkleton v. Hall (C.C.A.8) 66 F.(2d) 384, 386; Hawthorne v. Bankers’ Life Co. (C.C.A.8) 63 F.(2d) 971; Gerlach v. Chicago, R. I. & P. Ry. Co. (C.C.A.8) 65 F.(2d) 862; Anderson v. United States (C.C.A.8) 65 F.(2d) 870; Town Club of St. Louis v. United States (C.C.A.8) 68 F.(2d) 620; Hussey-Hobbs Tie Co. v. Louisville & N. R. Co. (C.C.A.8) 69 F.(2d) 92; Jones et al. v. Gill et al. (C.C.A.8) 67 F.(2d) 159; Mandel Bros., Inc., v. Henry A. O’Neil, Inc., et al. (C.C.A.8) 69 F.(2d) 452; Baker Ice Mach. Co., Inc., v. Hebert (C.C.A.8) 76 F.(2d) 73, 74, 75; Union Bleachery v. United States (C.C.A.4) 79 F.(2d) 549, 550, 551, 102 A.L.R. 204; Fleischmann Const. Co. v. United States, 270 U.S. 349, 46 S.Ct. 284, 70 L.Ed. 624; Eastman Kodak Co. et al. v. Gray, 292 U.S. 332, 54 S.Ct. 722, 78 L.Ed. 1291; Harvey Co. v. Malley et al., 288 U.S. 415, 53 S.Ct. 426, 77 L.Ed. 866; Lewellyn v. Electric Reduction Co., 275 U.S 243, 48 S.Ct. 63, 72 L.Ed. 262. The bare exception to the general finding is not sufficient to preserve for review the question of the sufficiency of the evidence to support the finding and judgment. Wilson v. Merchants’ Loan & Trust Co., 183 U.S. 121, 127, 22 S.Ct. 55, 46 L.Ed. 113; Martinton v. Fairbanks, 112 U.S. 670, 5 S.Ct. 321, 28 L.Ed. 862; Tabor v. Commercial Nat. Bank of Cleveland (C.C.A.8) 62 F. 383, 388; Humphreys v. Third Nat. Bank of Cincinnati, Ohio (C.C.A.6) 75 F. 852, 856; American Surety Co. of New York v. Cotton Belt Levee Dist. No. 1 of Phillips County, Ark. (C.C.A.8) supra, 58 F.(2d) 234, 235; United States v. Douglas, Buchanan & Crow, Inc., et al. (C.C.A.8) supra, 61 F.(2d) 821, 825. The judgment is affirmed." }, { "docid": "21481958", "title": "", "text": "If the statute is not complied with, however, the judgment of the court is valid; but there can be no review in this court of any question that does not arise upon the primary record. Bond v. Dustin, 112 U. S. 604, 5 S. Ct. 296, 28 L. Ed. 835; City of Cleveland v. Walsh Construction Co., supra. In such case, it is well settled that alleged errors in the admission or rejection of testimony cannot be reviewed. Bond v. Dustin, supra; Weems v. George, 13 How. 190, 196, 14 L. Ed. 108; Campbell v. Boyreau, 21 How. 223, 226, 16 L. Ed. 96. And it is equally well settled that, in case of a general finding by the court, the appellate court is without power to review the sufficiency of the evidence to sustain the finding. Fleischmann Const. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624; Law v. United States, 266 U. S. 494, 45 S. Ct. 175, 69 L. Ed. 401. As said in the case last cited: “Neither the evidence, nor the questions of law presented by it, were reviewable by the Court of Appeals. To inquire into the facts and the conclusions of law on which the judgment of the lower court rests was not permissible.” There is some question as to whether in cases where there is a special finding of facts by the trial judge, upon a waiver of a jury trial without written stipulation, it is permissible for the appellate court to review the findings of fact to determine whether they support the judgment entered. Law v. U. S., supra; Cleveland v. Walsh Const. Co., supra; Swift v. Jones, 145 F. 489, 76 C. C. A. 253; Crouch v. U. S. (C. C. A.) 8 F.(2d) 435. But that question does not arise here, as there was no special finding of facts made by the judge. The statement of facts contained in his opinion cannot be treated as a special finding for the purpose of determining whether the facts found support the judgment. Fleischmann Const." }, { "docid": "2974951", "title": "", "text": "was then taken. City of Cleveland v. Walsh (C. C. A.) 279 F. 57; Fleischmann Const. Co. v. U. S., 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624; Law v. U. S., 266 U. S. 494, 45 S. Ct. 175, 69 L. Ed. 401. If there were any specific questions of fact Upon which defendant desired findings, it should have presented them to the court below; if it claimed that any specific finding of fact was not supported by any substantial evidence, it should have excepted specifically upon that ground; a general! exception to a finding of fact is meaningless. The claim that the findings do not support the judgment is, of course, open on such an appeal; but that cannot avail defendant here. It is found as a fact that the structures in dispute were covered by the contract between the parties, and, as a finding of fact, this is about all that could he said in order to support a judgment for an agreed royalty. Defendant presents the case very much as if it were an equity appeal, hut, when the argument is reduced to terms permissible in a law appeal, it comes to saying that, upon the undisputed facts, the court was required as a matter of law to find no liability; but this position cannot be considered by a reviewing court, unless the defendant has upon the trial proceeded by analogy to a motion for a directed verdict. If made at any time before the trial is finished — and perhaps a trial for this purpose continues until the court announces its conclusion — a request for a conclusion as a matter of law that there is no evidence to support a judgment would be sufficient to preserve this quesion for our consideration ; hut no such request was made, and the matter is not open here. Oyler v. Cleveland, C., C. & St. L. R. Co. (C. C. A. 6) 16 F.(2d) 455; May v. Marbury (C. C. A. 6 — Apr. 7, 1930) 39 F.(2d) 438, and cases cited. Error" }, { "docid": "21343857", "title": "", "text": "that such findings and conclusions are not supported by the evidence. The assignment of error with reference to the admission of evidence is fatally defective, because it does not quote the full substance of the evidence admitted or rejected, nor does it contain any reference to the record page of the printed record where the ruling complained of appears. Rules 11 and 24. As the action was tried to the court without a jury, it will be presumed on appeal that the court considered only the competent evidence, so that we need not consider the challenged ruling of the court overruling plaintiff’s objection to the admission of this testimony. If the evidence objected to be disregarded, there is still ample competent evidence to support the findings made by the lower court. The record is clearly insufficient to entitle plaintiff to obtain a review of the court’s conclusions. As said by the Supreme Court in Fleischmann Const. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 288, 70 L. Ed. 624, “ * * * a party must either obtain from the trial court special findings which raise the legal propositions, or present the propositions of law to the court and obtain a ruling on them.” In Inter-Southern life Insurance Co. v. Klaber (C. C. A. 8) 50 F.(2d) 154, in an opinion by Judge Van Valkenburgh, this question of practice is considered and the authorities collated and reviewed. The question was again before this court in American Surety Co. v. Cotton Belt Levee Dist. No. 1 (C. C. A. 8) 58 F.(2d) 234, 235, where, in an opinion by Judge Stone, it is said: “The matters involved in this appeal have to do with the sufficiency of the evidence or lack of substantial evidence to sustain these judgments. Where a jury is waived in accordance with section 773, no request for special findings made before judgment and no demurrer (or equivalent) challenging the sufficiency or lack of the evidence, this court is foreclosed from examining such sufficiency or lack.” To the same effect, see Hawthorne v. Bankers’" }, { "docid": "15289015", "title": "", "text": "the trial court and its refusal to make special findings is not reviewable on appeal. White v. United States, supra. In a jury-waived case, in the absence of special findings, a general finding is conclusive upon the matters of fact and prevents any inquiry into the conclusions of law embodied therein, except in so far as the rulings during the progress of the trial were excepted to and duly preserved by bill of exceptions. But a party, by motion for judgment in his favor or by application for a declaration of law that he is entitled to judgment, may raise the question of law whether he is entitled to judgment upon all the evidence, and such question, if presented by proper bill of exceptions, will be reviewed on appeal notwithstanding a general finding in favor of the adverse party. White v. United States, supra; Fleischmann Const. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624. Rulings upon such a motion or application for a declaration of law and other rulings on questions of law made by the court during the progress of the trial are properly a part of the trial proceedings and should be presented to the appellate court by proper bill of exceptions. White v. United States, supra; Merriam v. Huselton (C. C. A. 8) 45 F.(2d) 983, 985, 986; Federal Intermediate Credit Bank v. L’Herisson (C. C. A. 8) 33 F.(2d) 841, 843; Ana Maria Sugar Co. v. Quinones (C. C. A. 1) 251 F. 499, 504. A request for a declaration of law not presented until after the close of the trial comes too late. Southern Surety Co. v. United States (C. C. A. 8) 23 F.(2d) 55, 59; Merriam v. Huselton, supra, page 985 of 45 F.(2d). Assuming, without deciding, that the purported request for a declaration of law amounted to a motion for judgment in favor of plaintiff, or for a declaration of law that plaintiff was entitled to judgment upon all the evidence, we cannot consider it because it is not included in the bill of" }, { "docid": "21481959", "title": "", "text": "case last cited: “Neither the evidence, nor the questions of law presented by it, were reviewable by the Court of Appeals. To inquire into the facts and the conclusions of law on which the judgment of the lower court rests was not permissible.” There is some question as to whether in cases where there is a special finding of facts by the trial judge, upon a waiver of a jury trial without written stipulation, it is permissible for the appellate court to review the findings of fact to determine whether they support the judgment entered. Law v. U. S., supra; Cleveland v. Walsh Const. Co., supra; Swift v. Jones, 145 F. 489, 76 C. C. A. 253; Crouch v. U. S. (C. C. A.) 8 F.(2d) 435. But that question does not arise here, as there was no special finding of facts made by the judge. The statement of facts contained in his opinion cannot be treated as a special finding for the purpose of determining whether the facts found support the judgment. Fleischmann Const. Co. v. U. S., supra; British Queen Mining Co. v. Baker Silver Mining Co., 139 U. S. 222, 11 S. Ct. 523, 35 L. Ed. 147; U. S. v. Sioux City Stock Yards Co. (C. C. A. 8th) 167 F. 126, 92 C. C. A. 578. The assignment of error relating to the amendment of the declaration presente no question for review, as it was clearly within the discretion of the trial judge to permit an amendment. This leaves nothing to be determined except the questions raised by the demurrer; but, as the declaration sets forth the facts very fully, we can dispose of the case upon the merits in dealing with these questions. We quite agree with the proposition that the right of plaintiff to recover on the claims sued on is no greater than that of the laborers and materialmen whose claims were assigned; but we think that it is clear that these laborers and materialmen would have been entitled to recover if the action had been instituted by them prior to the" }, { "docid": "15289014", "title": "", "text": "the plaintiff in the sum of $30,000.00 for its wilful breach of its contract and agreement with the plaintiff herein, together with interest on such amount from this date at the rate of 6 per cent per annum, and all costs of suit.” The following purported endorsement appears on this document: \"Refused:..........Edgar S. Vaught, “Judge, United States Distiict Court, Western District of Oklahoma.” Such purported request and endorsement wore not incorporated into nor made a part of the bill of exceptions, but are printed in the transcript as a part of the record proper. On an appeal from a judgment in an action at law, questions open for review are limited by statute to errors of law. White v. United States (C. C. A. 10) 48 F.(2d) 178, 180; section 879, title 28, USCA (18 Stat. 318). Section 773, title 28, USCA (46 Stat. 486), provides that the findings of the court in a jury-waived ease may be either general or special. Whether the findings shall be special or general rests in the discretion of the trial court and its refusal to make special findings is not reviewable on appeal. White v. United States, supra. In a jury-waived case, in the absence of special findings, a general finding is conclusive upon the matters of fact and prevents any inquiry into the conclusions of law embodied therein, except in so far as the rulings during the progress of the trial were excepted to and duly preserved by bill of exceptions. But a party, by motion for judgment in his favor or by application for a declaration of law that he is entitled to judgment, may raise the question of law whether he is entitled to judgment upon all the evidence, and such question, if presented by proper bill of exceptions, will be reviewed on appeal notwithstanding a general finding in favor of the adverse party. White v. United States, supra; Fleischmann Const. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624. Rulings upon such a motion or application for a declaration of law and" }, { "docid": "7605300", "title": "", "text": "124, 127; Fleischmann Co. v. United States, 270 U. S. 349, 356, 46 S. Ct. 284, 70 L. Ed. 624. Out of the plethora of eases construing the act of 1865, the following rules applicable to jury waived eases may be deduced, and on which the decisions are substantially in accord. If the findings of the court are general, only such rulings as are made in the progress of the trial are reviewable. A trial is still in progress within the meaning of the statute until the case is submitted to the trial judge for final determination. No exception lies to a final judgment based on general finding of facts. Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 22 S. Ct. 55, 46 L. Ed. 113; United States Fidelity & G. Co. v. Com’rs (C. C. A.) 145 F. 144, 151. If, however, the ultimate facts are agreed upon by the parties, or the trial judge makes special findings of all the ultimate facts, so that the rights of the parties become purely a question of law, the final conclusion of the court is reviewable, at least on exceptions to a refusal of a motion for a judgment by the losing party. Bank of Waterproof v. Fidelity & Deposit Co., supra; St. Louis v. Western Union Tel. Co., 148 U. S. 92, 13 S. Ct. 485, 37 L. Ed. 380; Fleischmann Co. v. United States, supra. If the parties stipulate as to the ultimate facts, it in effect amounts to a special finding of facts by a jury (Supervisors v. Kennicott, supra), and whether the jury is waived under section 649, Rev. St. (28 USCA § 773) or the case is merely withdrawn from the jury and submitted to the court without compliance with that section, the ruling of the trial judge in ordering judgment for either party, though no exception thereto be taken by the losing party, is reviewable, formerly on writ of error, and now on appeal. Suydam v. Williamson, supra; Seeberger v. Schlesinger, supra. It is difficult to lay down a .rule, however, that" }, { "docid": "17604335", "title": "", "text": "VAN VALKENBURGH, Circuit Judge. Appellant sued in the circuit court of Jackson county, Mo., to recover on a policy of insurance issued by respondent to her husband, Samuel C. Hawthorne, July 3, 1918. The insured died March 27, 1930. The ease was removed to the District Court of the United States for the Western District of Missouri. A jury was waived by stipulation, and the ease was tried to the court. The following judgment was entered: “This cause came on to be heard before the court, both parties appearing by counr sel, and the court, after hearing the evidence and arguments of counsel, took said cause under advisement and briefs were submitted to the court by respective counsel, and the court being fully advised in the premises has heretofore filed a memorandum opinion herein, setting out a finding of facts and conclusions of law in favor of defendant. “It is therefore ordered, adjudged and decreed that said defendant, Bankers Life Company, go hence without day and recover its costs from said plaintiff and that it have execution therefor.” During the progress of the trial, there were no requests for findings of fact or conclusions of law. No motion for judgment was made at the close of the evidence, nor other like action taken to challenge the rulings of the court. In such ease no question of fact or law is presented for review, because “the finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury.” 28 USCA § 773. Tq obtain a review of the conclusions, “a party must either obtain from the trial court special findings which raise the legal propositions, or present the propositions of law to the court and obtain a ruling on them.” Fleischmann Const. Co. v. United States, 279 U. S. 349, 356, 46 S. Ct. 284, 288, 70 L. Ed. 624; Wear v. Imperial Window Glass Co. (C. C. A. 8) 224 F. 60, 63. For a complete discussion of the rules governing such a situation, see the opinions" }, { "docid": "23238703", "title": "", "text": "Co. (C. C. A. 2) 292 F. 846, 848; United States v. Smith (C. C. A. 1) 39 F. (2d) 851, 853; Denver L. S. Comm. Co. v. Lee (C. C. A. 8) 18 F.(2d) 11, 16; Southern Surety Co. v. United States (C. C. A. 8) 23 F.(2d) 55, 59; Merriam v. Huselton (C. C. A. 8) 45 F.(2d) 983. To have preserved the error here assigned, counsel for White should have moved the eourt for judgment at the close of the evidence, or should have requested the court to make a special declaration of law that White was entitled to judgment, on the ground that the evidence would sustain no other conclusion. Since we are precluded from considering the errors assigned, the judgment appealed from is affirmed. Fleischmann Const. Co. v. United States, 270 U. S. 349, 355, 356, 46 S. Ct. 284, 70 L. Ed. 624; Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 126-129, 22 S. Ct. 55, 46 L. Ed. 113; Vicksburg, S. & P. Ry. Co. v. Anderson-Tully Co., 256 U. S. 408, 415, 41 S. Ct. 524, 65 L. Ed. 1020; City of St. Louis v. Western Union Tel. Co., 166 U. S. 388, 390, 393, 17 S. Ct. 608, 41 L. Ed. 1044; Lehnen v. Dickson, 148 U. S. 71, 72-74, 13 S. Ct. 481, 37 L. Ed. 373; Norris v. Jackson, 9 Wall. 125, 128, 129, 19 L. Ed. 608; Federal I. C. Bank v. L’Herisson (C. C. A. 8) 33 F.(2d) 841, 843, 844; Akre v. Liberty Bank (C. C. A. 8) 24 F.(2d) 816, 818; Henry H. Cross Co. v. Texhoma Oil & Refining Co. (C. C. A. 8) 32 F.(2d) 442, 445; First National Bank of Ardmore v. Litteer (C. C. A. 8) 10 F.(2d) 447, 448; Lahman v. Burnes Nat. Bank (C. C. A. 8) 20 F.(2d) 897-899 ; Pennok Oil Co. v. Roxana Petroleum Co. (C. C. A. 8) 289 F. 416, 418, 419; Arkansas Anthracite Coal & L. Co. v. Stokes (C. C. A. 8) 277 F. 625, 627; United States v." }, { "docid": "23238697", "title": "", "text": "(C. C. A. 8) 33 F. (2d) 841, 843. A finding contrary to the weight of the evidence is an error of fact. Federal I. C. Bank v. L’Herisson, supra; First National Bank v. Litteer (C. C. A. 8) 10 F.(2d) 447, 448; Wear v. Imperial W. G. Co. (C. C.A.8) 224 F. 60, 63. Section 773, title 28 USCA (46 Stat. 486), provides that the findings of the court may be either general or special, and that such findings shall have the same effect as the verdict of a jury. In a jury waived case, in the absence of special findings, “a general finding * * * is conclusive upon all matters of faet, and prevents any inquiry into the conclusions of law embodied therein, except in so far as the rulings during the progress of the trial wer,e excepted to and duly preserved by bill of exceptions.” Fleischmann v. United States, 270 U. S. 349, 354, 46 S. Ct. 284, 287, 70 L. Ed. 624; Boardman v.Toffey, 117 U. S. 271, 6 S. Ct. 734, 29 L. Ed. 898; Martinton v. Fairbanks, 112 U. S. 670, 5 S. Ct. 321, 28 L. Ed. 862; Sierra Land & L. S. Co. v. Desert Power & M. Co. (C. C. A. 9) 229 F. 982. However, a general finding has the effect of a general verdict of a jury, and no more, and, while certain earlier decisions were apparently to the contrary (Dirst v. Morris, 14 Wall. 484, 490, 20 L. Ed. 722; Mercantile Mut. Insurance Co. v. Folsom, 18 Wall. 237, 250, 253, 21 L. Ed. 827; Cooper v. Omohundro, 19 Wall. 65, 22 L. Ed. 47; Searcy County v. Thompson (C. C. A.) 66 F. 92, 96. See also Sierra Land & L. S. Co. v. Desert Power & M. Co., supra), it is now well settled that, by motion for judgment in his favor or by an application for a declaration of law that he is entitled to judgment, • a party may raise the question of law whether he is entitled to judgment upon all the" }, { "docid": "21521884", "title": "", "text": "entry of the judgment containing a general finding for the plaintiff. 1. The defendant challenges the affirmance of the judgment of the court below by assignments of error of which there are 17. In assignments 1, 2, 3, 4, 7, 8, 9,10,11,12,15, 16, and 17 defendant complains and assigns as error certain “findings” and “holdings” of the trial judge. In the absence of special findings as to matters of fact, and as to conclusions of law drawn by the court from the facts found, the general findings of the court are not open to review by an appellate court, except in so far as the rulings during the trial were excepted to and duly preserved by a bill of exceptions, as required by the statute. Fleischmann Co. v. U. S., 270 U. S. 349, 355, 46 S. Ct. 284, 70 L. Ed. 624, and eases therein cited. The rule was stated in Humphreys v. Third National Bank (C. C. A.) 75 F. 852, 855, as follows: “When a party in the Circuit Court waives a jury, and agrees to submit his case to the court, it must be done in writing; and, if he wishes to raise any question of law upon the merits in the court above, he should request special findings of fact by the court, framed like a special verdict of a jury, and then reserve his exceptions to those special findings, if he deems them not to be sustained by any evidence; and, if he wishes to except to the conclusions of law drawn by the court from the facts, he should have them separately stated and excepted to. In this way, and in this way only, is it possible for him to review completely the action of the court below upon the merits. A general finding in favor of the party is treated as a general verdict.” Again the rule is stated in Denver Live Stock Commission Co. et al. v. Lee et al., 18 F.(2d) 11, 15: “When an action at law is tried without a jury by a federal court, and it makes" }, { "docid": "13381388", "title": "", "text": "23 F.(2d) 55; Denver Live Stock Commission Co. v. Lee (C. C. A.) 18 F.(2d) 11; Highway Trailer Co. v. City of Des Moines, Iowa (C. C. A.) 298 F. 71; Wear v. Imperial Window Glass Co. (C. C. A.) 224 F. 60. However, because of the action of the trial court, in apparent recognition of the stipulation of counsel to hold the final disposition of the case open until December 31, 1932, to enable appellant to take such steps as might be deemed necessary to preserve its record on appeal, we do not feel justified in denying to it such review as may otherwise be permissible. Of course, no error can be assigned to the refusal of the court, sitting as a jury, to make the fact findings requested. St. Louis v. Rutz, 138 U. S. 228, 11 S. Ct. 337, 34 L. Ed. 941; Southern Surety Co. v. United States (C. C. A. 8) 23 F.(2d) 55. There is open to review in such case only the questions of whether the findings support the judgment entered, or whether there is substantial evidence to support the findings. And the latter question is open only when “a request or a motion is made, denied, and excepted to, or some other like action is taken which fairly presents that question to the trial court and secures its ruling thereon.” Wear v. Imperial Window Glass Co. (C. C. A. 8) 224 F. 60, 63; Fleisehmann Construction Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 70 L. Ed. 624. This question is presented by appellant’s motion for judgment on the ground that: “There' is no substantial evidence and no evidence whatsoever to sustain a finding or judgment in favor of the defendants and against the plaintiff.” Whether there is substantial evidence to support the findings makes necessary a consideration of what may constitute intrastate business within the meaning of the South Dakota Statutes invoked. Merely soliciting orders for goods to be shipped in the course of interstate commerce does not constitute doing business in the state to which the" }, { "docid": "11972389", "title": "", "text": "the course of the trial,” which are relied on. Exceptions, following an order of judgment, to alleged rulings in a written opinion of the judge assigning reasons for ordering a judgment for either party, are not rulings in the course of the trial. Fleischmann Const. Co. v. United States, 270 U. S. 349, 46 S. Ct. 284, 287, 70 L. Ed. 624; United States v. Smith (C. C. A.) 39 F.(2d) 851; Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 22 S. Ct. 55, 46 L. Ed. 113. As the court said in Fleischmann Const. Co. v. United States: “It is settled by repealed decisions, that in the absence of special findings, the general finding of the court is conclusive upon all matters of fact, and prevents any inquiry into the conclusions of law embodied therein, except in so far as the rulings during the progress of the trial were excepted to and duly preserved by bill of exceptions, as required by the statute. '* * 41 To obtain a review by an appellate eourt of the conclusions of law a party must either obtain from the trial eourt special findings which raise tho legal propositions, or present the propositions of law to the court and obtain a riding on them. * B That is, as was said in Humphreys v. Third National Bank, supra [75 F. 852], 855 (21 C. C. A. 542), ‘ho should request special findings of fact by the court, framed like a special verdict of a, jury, and then reserve his exceptions to those special findings, if he deems them not to be sustained by any evidence; and if he wishes to except to tho conclusions of law drawn by the court from the facts found ho should have them separately stated and excepted to. In this way and in this way only, is it possible for him to review completely the action of iho eourt below upon the merits.’ ” Each of tire assignments of error in this case relates either to matters of fact or to conclusions of law embodied" }, { "docid": "23238702", "title": "", "text": "C. A. 1) 39 F.(2d) 851, 854. An exception is not a prerequisite to a review of the question of the sufficiency of the agreed statement of facts or the specific findings to support the judgment, since such a question is presented on the record proper. Chicago, R. I. & P. Ry. Co. v. Barrett (C. C. A. 6) 190 F. 118, 123; Seeberger v. Schlesinger, 152 U. S. 581, 586, 14 S. Ct. 729, 38 L. Ed. 560; Webb v. National Bank of Republic (C. C. A. 8) 146 F. 717, 719; United States v. La Franca, 51 S. Ct. 278, 75 L. Ed.-, decided February 24,1931. Whether the findings shall be special or general rests in the discretion of the trial court and its refusal to make special findings is not reviewable on appeal. Modoc County Bank v. Ringling (C. C. A. 9) 7 F. (2d) 535, 536; Bank of Waterproof v. Fidelity & Deposit Co. (C. C. A. 5) 299 F. 478, 480; Compania Trans. de Petroleo v. Mexi can Gulf Oil Co. (C. C. A. 2) 292 F. 846, 848; United States v. Smith (C. C. A. 1) 39 F. (2d) 851, 853; Denver L. S. Comm. Co. v. Lee (C. C. A. 8) 18 F.(2d) 11, 16; Southern Surety Co. v. United States (C. C. A. 8) 23 F.(2d) 55, 59; Merriam v. Huselton (C. C. A. 8) 45 F.(2d) 983. To have preserved the error here assigned, counsel for White should have moved the eourt for judgment at the close of the evidence, or should have requested the court to make a special declaration of law that White was entitled to judgment, on the ground that the evidence would sustain no other conclusion. Since we are precluded from considering the errors assigned, the judgment appealed from is affirmed. Fleischmann Const. Co. v. United States, 270 U. S. 349, 355, 356, 46 S. Ct. 284, 70 L. Ed. 624; Wilson v. Merchants’ Loan & Trust Co., 183 U. S. 121, 126-129, 22 S. Ct. 55, 46 L. Ed. 113; Vicksburg, S. & P. Ry. Co." }, { "docid": "17604336", "title": "", "text": "have execution therefor.” During the progress of the trial, there were no requests for findings of fact or conclusions of law. No motion for judgment was made at the close of the evidence, nor other like action taken to challenge the rulings of the court. In such ease no question of fact or law is presented for review, because “the finding of the court upon the facts, which may be either general or special, shall have the same effect as the verdict of a jury.” 28 USCA § 773. Tq obtain a review of the conclusions, “a party must either obtain from the trial court special findings which raise the legal propositions, or present the propositions of law to the court and obtain a ruling on them.” Fleischmann Const. Co. v. United States, 279 U. S. 349, 356, 46 S. Ct. 284, 288, 70 L. Ed. 624; Wear v. Imperial Window Glass Co. (C. C. A. 8) 224 F. 60, 63. For a complete discussion of the rules governing such a situation, see the opinions of this court in Inter-Southern Life Ins. Co. v. Klaber, 50 F.(2d) 154, American Surety Co. v. Cotton Belt Levee Dist. No. 1, 58 F.(2d) 234, 235, Clauson v. United States, 60 F.(2d) 694, 696, and cases therein cited. Even though the findings made by the court be special, the evidence is not reviewable; but we may examine the findings of fact to determine whether they support the conclusions reached. The judgment entry expressly refers to these findings as embraced within the memorandum opinion theretofore filed. This memorandum is found in (D. C.) 52 F.(2d) at page 309, and an inspection of its contents discloses the crucial issue presented to the trial court for decision, and that its conclusions are fully supported by the findings made. The view of the trial court as applied to the specific contention of appellant is very clearly expressed m its memorandum opinion upon overruling appellants motion for new trial. It so convincingly demonstrates the correctness of the decision upon the case made, as gathered from the pleadings, findings, and" }, { "docid": "23238696", "title": "", "text": "at law tried to the court is limited to questions arising on the process, pleadings or judgment. Commissioners of Road Improvement Dist. No. 2 v. St. Louis Southwestern Ry. Co., 257 U. S. 547, 562, 42 S. Ct. 250, 66 L. Ed. 364; Duignan v. United States, 274 U. S. 195, 198,199, 47 S. Ct. 566, 71 L. Ed. 996; Spalding v. Manasse, 131 U. S. 65, 9 S. Ct. 649, 33 L. Ed. 86; Dundee Mtg. & T. Co. v. Hughes, 124 U. S. 157, 8 S. Ct. 377, 31 L. Ed. 357; North River Ins. Co. v. Guaranty State Bank (C. C. A. 5) 30 F.(2d) 881; Municipal Excavator Co. v. Siedhoff (C. C. A.) 15 F.(2d) 10, 14; National City Bank v. Kimball Commercial & Sav. Bank (C. C. A. 8) 2 F.(2d) 461. On an appeal from a judgment in an action at law, the questions open for review are limited by statute to errors of law. Section 879, title 28 USCA (18 Stat. 318); Federal I. C. Bank v. L’Herisson (C. C. A. 8) 33 F. (2d) 841, 843. A finding contrary to the weight of the evidence is an error of fact. Federal I. C. Bank v. L’Herisson, supra; First National Bank v. Litteer (C. C. A. 8) 10 F.(2d) 447, 448; Wear v. Imperial W. G. Co. (C. C.A.8) 224 F. 60, 63. Section 773, title 28 USCA (46 Stat. 486), provides that the findings of the court may be either general or special, and that such findings shall have the same effect as the verdict of a jury. In a jury waived case, in the absence of special findings, “a general finding * * * is conclusive upon all matters of faet, and prevents any inquiry into the conclusions of law embodied therein, except in so far as the rulings during the progress of the trial wer,e excepted to and duly preserved by bill of exceptions.” Fleischmann v. United States, 270 U. S. 349, 354, 46 S. Ct. 284, 287, 70 L. Ed. 624; Boardman v.Toffey, 117 U. S. 271, 6 S." } ]

[ { "docid": "22881400", "title": "", "text": "1968. Nineteen days later we held in the case of Barber v. Page, 390 U. S. 719, that the absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the State had made a good-faith effort to secure the witness’ presence. The sole question in this case is whether the holding of Barber v. Page should be given retroactive application. We think that it should. Clearly, petitioner’s inability to cross-examine Dunston at trial may have had a significant effect on the “integrity of the fact-finding process.” Linkletter v. Walker, 381 U. S. 618, 639 (1965); cf. Roberts v. Russell, 392 U. S. 293 (1968); McConnell v. Rhay, ante, p. 2 (1968). As we pointed out in Barber v. Page, one of the important objects of the right of confrontation was to guarantee that the fact finder had an adequate opportunity to assess the credibility of witnesses. 390 U. S., at 721. And California’s claim of a significant countervailing interest based upon its reliance on previous standards, see Stovall v. Denno, 388 U. S. 293, 297 (1967), is most unpersuasive. Barber v. Page was clearly foreshadowed, if not preordained, by this Court’s decision in Pointer v. Texas, 380 U. S. 400 (1965), which was handed down more than a year before petitioner’s trial. Accordingly, we can see no reason why Barber v. Page should not be given fully retroactive application. The motion for leave to proceed in forma pauperis and the petition for writ of certiorari are granted. The judgment of the Court of Appeal is vacated and the case is remanded for reconsideration in light of this Court’s decision in Barber v. Page, 390 U. S. 719 (1968). It is so ordered." } ]

[ { "docid": "22696840", "title": "", "text": "of the fact-finding process at trial and without which innocent persons may have been adjudged guilty. See, e. g., Roberts v. Russell, 392 U. S. 293 (1968) (holding retroactive Bruton v. United States, 391 U. S. 123 (1968)); McConnell v. Rhay, 393 U. S. 2 (1968) (holding retroactive Mempa v. Rhay, 389 U. S. 128 (1967)); Arsenault v. Massachusetts, 393 U. S. 5 (1968) (holding retroactive White v. Maryland, 373 U. S. 59 (1963)); Berger v. California, 393 U. S. 314 (1969) (holding retroactive Barber v. Page, 390 U. S. 719 (1968)); Gideon v. Wainwright, 372 U. S. 335 (1963); Griffin v. Illinois, 351 U. S. 12 (1956); Jackson v. Denno, 378 U. S. 368 (1964). In the present cases, the Court decides that the lawfulness of wiretaps and electronic eavesdropping occurring before December 18, 1967, will be controlled by Olmstead v. United States, supra, a decision that the Court agrees is a false and insupportable reading of the Constitution. The Court holds that the Fourth Amendment meant something quite different before Katz was decided than it means afterwards; that Katz and persons whose rights are violated after the date of that decision may have the benefit of the true meaning of the constitutional provision, but that those who were victims before Katz may not. If such a distinction in the application of a substantive constitutional principle can ever be justified, it can be only in the most compelling circumstances. Such circumstances might possibly exist if the newly announced principle related only to the States, in that it extended to the States a principle heretofore deemed to apply only to the Federal Government, or if “retroactive” application would place an extreme burden on the administration of justice; if the new ruling were wholly unanticipated in the decisions of the Court; and if the new rule did not directly and clearly affect the fairness of the trial. Cf. DeStefano v. Woods, supra; Johnson v. New Jersey, 384 U. S. 719 (1966); Linkletter v. Walker, supra. But there is no justification for refusing “retroactive” application to a constitutional principle merely because of" }, { "docid": "22247492", "title": "", "text": "retroactive application of the new standards.” (Stovall v. Denno (1967) 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199.) “Foremost among these factors is the purpose to be served by the new constitutional rule.” (Desist v. United States (1969) 394 U.S. 244, 249, 89 S,Ct. 1030, 1033, 22 L.Ed.2d 248.) Heavy weight should be given the last two factors — the extent of reliance and consequent burden on the administration of justice — “only when the purpose of the rule in question [does] not clearly favor either retroactivity or prospectivity.” (Desist v. United States, supra, 394 U.S. at 251, 89 S.Ct. at 1035.) Accordingly, where the rule is fashioned to correct a serious flaw in the fact-finding process and therefore goes to the basic integrity and accuracy of the guilt-innocence determination, retroactive effect will be accorded. (E. g., McConnell v. Rhay (1968) 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2; Roberts v. Russell (1968) 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100; Witherspoon v. Illinois (1968) 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776; Jackson v. Denno (1964) 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908; Gideon v. Wainwright (1963) 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799; Griffin v. Illinois (1956) 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; see Linkletter v. Walker (1965) 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601, 639.) Retroactivity has been denied or limited only in instances where the rule does not go to the fairness of the trial, or where the flaw in the fact-finding process is either of secondary importance or of infrequent occurrence. (E. g., Desist v. United States, supra; Stovall v. Denno, supra; Tehan v. United States ex rel. Shott (1966) 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453; Johnson v. New Jersey (1966) 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882; Linkletter v. Walker, supra; Williams v. United States (9th Cir. 1969) 418 F.2d 159.). The invalidated portion of the presumption was an integral part of the fact-finding process. The use of the presumption affected the integrity of" }, { "docid": "872098", "title": "", "text": "Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (right to confront and cross examine witnesses), held retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) and Barber v. Page, 390 U. S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), held retroactive in Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (right to counsel on appeal), held retroactive in Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1970) (right to counsel at sentencing), held retroactive in McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (right to counsel at preliminary hearings in which substantial rights may be adversely affected), held retroactive in Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968). Generally, rulings not primarily designed to enhance the reliability of the fact-finding or truth-determining process have not been applied retroactively. The exclusionary rule of Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) was held not to be fully retroactive in Linkletter v. Walker, supra. The rule of Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1955), forbidding prosecutorial comment on the defendant’s failure to testify was denied complete retroactive effect in Tehan v. United States ex rel. Shott, supra. Johnson v. New Jersey, supra, denied retroactivity to the landmark decisions of Escobedo v. Illinois, 378 U. S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977 (1964) and Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. And this court in United States ex rel. Allison v. New Jersey, 418 F.2d 332 (1969), denied retroactivity to the doctrine of Massiah v. United States, 377 U.S. 201, 84 S.Ct." }, { "docid": "872097", "title": "", "text": "of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards. Stovall v. Denno, 388 U.S. 293, 297, 87 S.Ct. 1967, 1970, (1967); Desist v. United States, 394 U.S. 244, 89 S.Ct. 1030, 22 L.Ed.2d 248 (1969); Johnson v. New Jersey, 384 U.S. 719, 86 S.Ct. 1772, 16 L.Ed.2d 882 (1966); Tehan v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). It is manifest that the considerations which require our rejection of the district court’s former grand jury selection procedure are not grounded in the Constitution, Hoyt v. Florida, supra. Moreover, that procedure posed no demonstrated threat to the integrity of the fact-finding process. Only when such considerations are present is there a rational basis for retroactive application. E.g., Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel), held retroactive in Doughty v. Maxwell, 376 U.S. 202, 84 S.Ct. 702, 11 L.Ed.2d 650 (1964); Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (right to confront and cross examine witnesses), held retroactive in Roberts v. Russell, 392 U.S. 293, 88 S.Ct. 1921, 20 L.Ed.2d 1100 (1968) and Barber v. Page, 390 U. S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), held retroactive in Berger v. California, 393 U.S. 314, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969); Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963) (right to counsel on appeal), held retroactive in Smith v. Crouse, 378 U.S. 584, 84 S.Ct. 1929, 12 L.Ed.2d 1039 (1964); Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1970) (right to counsel at sentencing), held retroactive in McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968); White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963) (right to counsel at preliminary hearings in which substantial rights may be adversely" }, { "docid": "22845164", "title": "", "text": "United States v. U. S. Coin & Currency, 401 U. S. 715, 722-724 (1971). Robinson involved the retroactive application of the decision in Waller v. Florida, 397 U. S. 387 (1970), that the Fifth Amendment’s guarantee, made applicable to the States through the Fourteenth Amendment, that no person should be put twice in jeopardy for the same offense barred an individual’s prosecution for a single offense by both a State and a municipality of the State, that is, a legal subdivision of the State. U. S. Coin & Currency held retro active the Court’s prior determination that the Fifth Amendment privilege against compulsory self-incrimination barred the prosecution of gamblers for failure to register and to report illegal gambling proceeds for tax purposes, see Marchetti v. United States, 390 U. S. 39 (1968); Grosso v. United States, 390 U. S. 62 (1968). In deciding whether to give retroactive effect to Waller, Marchetti, and Grosso, the Court rejected contentions that it should apply the three-prong test employed in cases such as Stovall v. Denno, 388 U. S. 293 (1967), Desist v. United States, 394 U. S. 244 (1969), and DeStefano v. Woods, 392 U. S. 631 (1968). In U. S. Coin & Currency, Mr. Justice Harlan, speaking for the Court, explained: “Unlike some of our earlier retroactivity decisions, we are not here concerned with the implementation of a procedural rule which does not undermine the basic accuracy of the factfinding process at trial. Linkletter v. Walker, 381 U. S. 618 (1965); Tehan v. Shott, 382 U. S. 406 (1966); Johnson v. New Jersey, 384 U. S. 719 (1966); Stovall v. Denno, 388 U. S. 293 (1967). Rather, Marchetti and Grosso dealt with the kind of conduct that cannot constitutionally be punished in the first instance.” 401 U. S., at 723. The Robinson Court adopted essentially the same view of the Waller decision concerning the Double Jeopardy Clause and multiple prosecutions by different legal subdivisions of a single sovereign. See 409 U. S., at 508. In this case, too, we are concerned, not with “the implementation of a procedural rule,” but with an" }, { "docid": "22384660", "title": "", "text": "Douglas v. California, 372 U. S. 353 (1963); Griffin v. Illinois, 351 U. S. 12 (1956). The Fourth Amendment cases do not stand alone. We have reached similar results in holding nonretroactive new interpretations of the Fifth Amendment’s privilege against compelled self-incrimination, although some ramifications of the privilege have more connection with trustworthy results than does the exclusionary rule designed to enforce the Fourth Amendment. See Tehan v. Shott, 382 U. S. 406, 414-415, n. 12 (1966); Johnson v. New Jersey, 384 U. S. 719, 730 (1966); Desist v. United States, 394 U. S., at 249-250, n. 14; cf. Mackey v. United States, post, at 674-675. So, too, the right to jury trial secured by the Sixth Amendment “generally tends to prevent arbitrariness and repression,” DeStefano v. Woods, 392 U. S. 631, 633 (1968), and the holdings in United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), carry implications for the'reliability of identification testimony. But both Duncan v. Louisiana, 391 U. S. 145 (1968), obligating the States to recognize the right to jury trial by virtue of the Fourteenth and Sixth Amendments, and Wade and Gilbert were applied only prospectively in view of the countervailing considerations that retroactivity would entail. DeStefano v. Woods, supra; Stovall v. Denno, 388 U. S. 293 (1967). In both Johnson and Stovall, we frankly acknowledged that “[t]he extent to which a condemned practice infects the integrity of the truth-determining process at trial is a ‘question of probabilities.’ ” 388 U. S., at 298. Where we have been unable to conclude that the use of such a “condemned practice” in past criminal trials presents substantial likelihood that the results of a number of those trials were factually incorrect, we have not accorded retroactive effect to the decision condemning that practice. See e. g., DeStefano, 392 U. S., at 633-634 (quoting Duncan): “ ‘We would not assert, however, that every criminal trial — or any particular trial — held before a judge alone is unfair or that a defendant may never be as fairly treated by a judge" }, { "docid": "8285885", "title": "", "text": "Compare, Application of Billie, 103 Ariz. 16, 436 P.2d 130 (1968); State ex rel LaFollete v. Circuit Court, 37 Wis. 2d 329, 155 N.W.2d 141 (1967) (holding Gault retroactive on this issue); with State v. Hance, 2 Md.App. 162; 233 A.2d 326 (1967); Cradle v. Peyton, 208 Va. 243, 156 S.E.2d 874 (1967), cert. den. 392 U.S. 945, 88 S.Ct. 2296, 20 L. Ed.2d 1407 (1968) (denying retroactive effect). The general question of the retroactivity of constitutional decisions has not resulted in any clear rule to be applied in all cases. However, this area of the law need not be explored in much depth since the prime foundation of this section of In re Gault, Gideon v. Wainwright has been applied retroactively. The Supreme Court has applied retroactively those cases whose constitutional commands are central to the reliability of the fact-finding process at trial and without which innocent persons may have been adjudged guilty. See, e. g., Roberts v. Russell, 392 U.S. 293, 88 S. Ct. 1921, 20 L.Ed.2d 1100 (1968) (holding retroactive Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968)); McConnell v. Rhay, 393 U.S. 2, 89 S.Ct. 32, 21 L.Ed.2d 2 (1968) (holding retroactive Mempa v. Rhay, 389 U.S. 128, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967) ); Arsenault v. Massachusetts, 393 U.S. 5, 89 S.Ct. 35, 21 L.Ed.2d 5 (1968) (holding retroactive White v. Maryland, 373 U.S. 59, 83 S.Ct. 1050, 10 L.Ed.2d 193 (1963)); Jackson v. Denno, 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956). Since In re Gault, supra, extends the Sixth Amendment protections of Gideon to juveniles and since Gideon is retroactive, it seems clear that such part of Gault as relates to the right of counsel for juveniles should likewise be applied retroactively. In addition, Ohio Revised Code, 2151.35 reads in part: “The disposition of a child under the judgment rendered or any evidence given in the [juvenile] court" }, { "docid": "22111564", "title": "", "text": "Gideon v. Wainwright, 372 U. S. 335 (1963); Jackson v. Denno, 378 U. S. 368 (1964), (see also Desist v. United States, 394 U. S. 244, 250 n. 15 (1969)); Reck v. Pate, 367 U. S. 433 (1961). Linkletter v. Walker, 381 U. S. 618, 640 (1965); Tehan v. Shott, 382 U. S. 406, 419 (1966); Johnson v. New Jersey, 384 U. S. 719, 736 (1966); Stovall v. Denno, 388 U. S. 293, 302 (1967); DeStefano v. Woods, 392 U. S. 631, 635 (1968); Desist v. United States, 394 U. S. 244, 255 (1969); Holliday v. United States, 394 U. S. 831, 835 (1969); Mackey v. United States, 401 U. S. 667, 713 (1971). It was suggested in Stovall v. Denno, supra, at 301, that a prospective-only holding would violate the Art. Ill requirement of ease or controversy. But see England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 422 (1964), where the Court exempted the petitioner from its holding. See also Johnson v. New Jersey, supra, at 733. While I subscribe to many of the reservations expressed by Mr. Justice Harlan, I nonetheless find his alternative rule of retrospec-tivity unsatisfactory. In Mackey v. United States, 401 U. S. 667, 675 (1971) (separate opinion), he suggested that constitutional decisions be retroactive as to all nonfinal convictions pending at the time of the particular holdings, but that prisoners seeking habeas relief should generally be treated according to the law prevailing at the time of their convictions. It is on this latter score that I am troubled. Surely it would be no more facile a task to unearth the state of law of years past than it is to assign, under the plurality’s test, a degree of reasonableness to reliance on older standards by law enforcement agencies. Where the question has arisen in this Court, we have treated habeas petitioners by the modem law, not by older rules. See Reck v. Pate, 367 U. S. 433 (1961) (habeas permitted on basis of current law to release prisoner convicted in 1936). See also Gideon v. Wainwright, 372 U. S. 335" }, { "docid": "22696850", "title": "", "text": "utterly fail to see how today’s decisions can be justified. It is indeed a paradox that Katz, whose role it was to bury the corpse of Olmstead, is here being used to revive it. [This opinion applies also to No. 62, Kaiser v. New York, post, p. 280.] Linkletter held that the Court’s decision in Mapp v. Ohio, 367 U. S. 643 (1961), that illegally seized evidence was not admissible in state prosecutions, should not be applied “retroactively.” In Tehan v. Shott, 382 U. S. 406 (1966), the Court held that its decision in Griffin v. California, 380 U. S. 609 (1965), that it violates the privilege against self-incrimination for the prosecution or the trial judge to comment on a criminal defendant’s failure to testify in his defense, should not apply “retroactively.” Johnson v. New Jersey, 384 U. S. 719 (1966), held that Escobedo v. Illinois, 378 U. S. 478 (1964), and Miranda v. Arizona, 384 U. S. 436 (1966), should not apply “retroactively.” Stovall v. Denno, 388 U. S. 293 (1967), held that United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), both of which related to the right to counsel at a pretrial lineup, should not be applied “retroactively.” In DeStefano v. Woods, 392 U. S. 631 (1968), the Court held that the right to trial by jury in state criminal prosecutions that had been established in Duncan v. Louisiana, 391 U. S. 145 (1968), and Bloom v. Illinois, 391 U. S. 194 (1968), was not “retroactive.” Finally, the Court held in Fuller v. Alaska, 393 U. S. 80 (1968), that Lee v. Florida, 392 U. S. 378 (1968), was not “retroactive.” Lee ruled that evidence obtained in violation of § 605 of the Federal Communications Act of 1934, 48 Stat. 1103, 47 U. S. C. § 605, was inadmissible in state criminal prosecutions. The meaning of “prospectivity” or “non-retroactivity” has varied in the Court’s decisions. In Linkletter v. Walker, supra, n. 1, and Tehan v. Shott, supra, n. 1, Mapp and Griffin were said not to apply to" }, { "docid": "22698173", "title": "", "text": "that retroactive application of newly announced constitutional rules of criminal procedure may have a serious impact on the administration of criminal justice has led us, since Linkletter v. Walker, 381 U. S. 618 (1965), to determine retroactivity in terms of three criteria: (1) the purpose served by the new rules; (2) the extent of law enforcement officials’ justifiable reliance on prior standards; and (3) the effect on the administration of justice of a retroactive application of the new rules. See, e. g., Michigan v. Payne, 412 U. S. 47, 51 (1973); Stovall v. Denno, 388 U. S. 293, 297 (1967); Tehan v. United States ex rel. Shott; 382 U. S. 406, 410-418 (1966). We have as a general matter limited our discussion of the relevant “purpose” of new rules to their functional value in enhancing the reliability of the factfinding process. See, e. g., Williams v. United States, 401 U. S. 646, 653 (1971); id., at 663 (concurring opinion) ; Desist v. United States, 394 U. S. 244, 249-250 (1969); Roberts v. Russell, 392 U. S. 293, 294 (1968); Tehan v. United States ex rel. Shott, supra; Linkletter v. Walker, supra, at 638-639. This limiting approach has been taken in recognition that “[t]he basic purpose of a trial is the determination of truth,” Tehan v. United States ex rel. Shott, supra, at 416; see Stovall v. Denno, supra, at 297-298, and that the principal legitimate interest of a convicted defendant is therefore assur- anee that the factfinding process at his trial was not unduly impaired by adherence to the old standards. In Johnson v. New Jersey, supra, the Court was called upon to determine whether the newly announced procedures in Miranda v. Arizona should be retroactively applied to upset final convictions based in part upon confessions obtained without the prior warnings required by Miranda. Aware that Miranda provided new safeguards against the possible use at trial of unreliable statements of the accused, we nonetheless concluded that the decision should not be retroactively applied. The prob ability that the truth-determining process was distorted by, and individuals were convicted on the basis" }, { "docid": "22679705", "title": "", "text": "(1964). But in Tehan we noted specifically that the privilege against self-incrimination is not primarily \"an adjunct to the ascertainment of truth,” 382 U. S., at 416, and emphasized as well that retroactive application of Griffin would, in the States concerned, “have an impact upon the administration of their criminal law so devastating as to need no elaboration.” Id., at 419. Similarly, in Johnson v. New Jersey, 384 U. S. 719 (1966), we denied retroactive effect to Escobedo v. Illinois, 378 U. S. 478 (1964), and Miranda v. Arizona, 384 U. S. 436 (1966), notwithstanding our recognition that the principles announced in those cases would in some circumstances guard against the possibility of unreliable confessions. 384 U. S., at 730. But we emphasized in Johnson that strict -pre-Miranda standards were available to those desiring to test the admissibility of confessions, ibid., as well as pointing out the severe impact that retroactivity would have on state criminal processes. Id., at 731-732. In Stovall v. Denno, 388 U. S. 293 (1967), we denied retroactive effect to United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), because of uncertainty about the frequency with which violation of the rule there announced would actually result in injustice, the availability of a due process standard to remedy at least the more serious injustices, and the “unusual force of the countervailing considerations.” Stovall v. Denno, 388 U. S., at 299. Finally, in DeStefano v. Woods, 392 U. S. 631 (1968), we denied retroactive effect to Duncan v. Louisiana, 391 U. S. 145 (1968), and Bloom v. Illinois, 391 U. S. 194 (1968), holding respectively that the States must afford criminal defendants a jury trial on demand in serious criminal cases, and that the right to jury trial extends to trials for serious criminal contempts. As to Duncan, retroactivity was denied because we considered that there was little likelihood that bench trials, as a whole, would be unfair, and because retroactive application could in some States reopen every conviction for serious crime. 392 U. S., at 633-634. As to" }, { "docid": "22111540", "title": "", "text": "197 N. E. 2d 433 (1964). In Morris the Illinois Supreme Court held that the Illinois preliminary hearing was not a critical stage at which the accused had a constitutional right to the assistance of counsel. Petitioner's conviction was affirmed by the Illinois Supreme Court, which rejected petitioner's argument that the later Coleman decision required reversal. The court acknowledged that its Morris decision was superseded by Coleman, but held that Coleman applied only to preliminary hearings conducted after June 22, 1970, the date Coleman was decided. 46 Ill. 2d 200, 263 N. E. 2d 490 (1970). We granted certiorari limited to the question of the retroactivity of Coleman. 401 U. S. 953 (1971). We affirm. The criteria guiding resolution of the question of the retroactivity of new constitutional rules of criminal procedure “implicate (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967). We have given complete retroactive effect to the new rule, regardless of good-faith reliance by law enforcement authorities or the degree of impact on the administration of justice, where the “major purpose of new constitutional doctrine is to overcome an aspect of the criminal trial that substantially impairs its truth-finding function and so raises serious questions about the accuracy of guilty verdicts in past trials Williams v. United States, 401 U. S. 646, 653 (1971). Examples are the right to counsel at trial, Gideon v. Wainwright, 372 U. S. 335 (1963); on appeal, Douglas v. California, 372 U. S. 353 (1963); or at some forms of arraignment, Hamilton v. Alabama, 368 U. S. 52 (1961). See generally Stovall v. Denno, supra, at 297-298; Williams v. United States, supra, at 653 n. 6. However, “the question whether a constitutional rule of criminal procedure does or does not enhance the reliability of the fact-finding process at trial is necessarily a matter of degree,” Johnson v. New Jersey, 384 U." }, { "docid": "22679697", "title": "", "text": "two obligations must be considered inseparable for purposes of measuring the hazards of self-incrimination which might stem from payment of the excise tax.” 390 U. S., at 65. Similarly, Marchetti ruled that: “The statutory obligations to register and to pay the occupational tax are essentially inseparable elements of a single registration procedure.” 390 U. S., at 42-43, and see n. 3. Consequently, it appears clear that the Fifth Amendment provides gamblers in Angelini’s position with a complete defense. United States v. Kahriger, 345 U. S. 22 (1953); Lewis v. United States, 348 U. S. 419 (1955). See, e. g., Roberts v. Russell, 392 U. S. 293 (1968); McConnell v. Rhay, 393 U. S. 2 (1968); Arsenault v. Massachusetts, 393 U. S. 5 (1968); Berger v. California, 393 U. S. 314 (1969). In the view of the writer of this opinion, the fact that this case had not become final by the time of this Court’s decisions in Mar-chetti and Grosso suffices, without more, to require rejection of the Government’s contention respecting nonretroactivity. See, e. g., Desist v. United States, 394 U. S. 244, 256 (Harlan, J., dissenting), and Mackey v. United States, ante, p. 675 (Harlan, J., concurring in judgments and dissenting). Mr. Justice Brennan, concurring. I join the opinion of the Court. The dissent would have us hold that the Government may continue indefinitely to enforce criminal penalties against individuals who had the temerity to engage in conduct protected by the Bill of Rights before the day that this Court held the conduct protected. Any such holding would have no more support in reason than it does in our cases. I Frank recognition of the possible impact of retroactive application of constitutional decisions on the administration of criminal justice has led this Court to establish guidelines to determine the retroactivity of “constitutional rules of criminal procedure.” Stovall v. Denno, 388 U. S. 293, 296 (1967). Since “[e]ach constitutional rule of criminal procedure has its own distinct functions, its own background of precedent, and its own impact on the administration of justice,” the “retroactivity or non-retroactivity of a rule is" }, { "docid": "22696806", "title": "", "text": "States, supra, at 510-512. See also DeStefano v. Woods, 392 U. S. 631; Johnson v. New Jersey, 384 U. S. 719, 727; Tehan v. Shott, 382 U. S. 406, 413; Linkletter v. Walker, 381 U. S. 618, 629. See Roberts v. Russell, 392 U. S. 293, 295; Witherspoon v. Illinois, 391 U. S. 510, 523, n. 22. In other areas where retroactivity has been denied the “purpose” criterion offered much weaker support. Cf. Stovall v. Denno, 388 U. S. 293, 298, where it was conceded that “the Wade and Gilbert rules also are aimed at avoiding unfairness at the trial by enhancing the reliability of the fact-finding process in the area of identification evidence”; Johnson v. New Jersey, 384 U. S. 719, 730, where it was recognized that “Escobedo and Miranda guard against the possibility of unreliable statements in every instance of in-custody interrogation”; and Tehan v. Shott, 382 U. S. 406, 414, where it was stated that “the ‘purpose’ of the Griffin rule is to be found in the whole complex of values that the privilege against self-incrimination itself represents,” including “our realization that the privilege, while sometimes ‘a shelter to the guilty/ is often ‘a protection to the innocent.’ ” Id., at 414-415, n. 12. Jackson v. Demo, 378 U. S. 368; Gideon v. Wainwright, 372 U. S. 335; Griffin v. Illinois, 351 U. S. 12. 48 Stat. 1103, 47 U. S. C. § 605. The Government has informed us in its brief that “[i]nstead of a wholesale release of thousands of convicted felons, only a relatively small number would probably be affected [by a retroactive application of Katz], since electronic surveillance has played a part in a limited number of federal cases.” We noted in Berger v. New York, 388 U. S. 41, 48-49, that only a handful of States have prohibited or regulated electronic surveillance by law enforcement officials. See DeStefano v. Woods, 392 U.S. 631; Stovall v. Denno, 388 U. S. 293; Johnson v. New Jersey, 384 U. S. 719. Cf. cases cited in n. 13, supra. In Linkletter itself the Court noted that it" }, { "docid": "22565093", "title": "", "text": "(1970) (held retroactive in Ivan V. v. New York, 407 U. S. 203 (1972)); Barber v. Page, 390 U. S. 719 (1968) (held retroactive in Berger v. California, 393 U. S. 314 (1969)); Bruton v. United States, 391 U. S. 123 (1968) (held retroactive in Roberts v. Russell, 392 U. S. 293 (1968)); Gideon v. Wainwright, 372 U. S. 335 (1963). The most that may be said is that the Court in Pearce found that “increased sentences on reconviction are far from rare,” 395 U. S., at 725 n. 20, and that it was persuaded that vindictiveness played a role in a sufficient number of those cases to “warrant the imposition of a prophylactic rule.” Colten v. Kentucky, 407 U. S., at 116. See Johnson v. New Jersey, 384 U. S. 719 (1966). See also Stovall v. Denno, 388 U. S., at 299 (in pxe-Wade-Gilbert cases “it remains open to all persons to allege and prove . . . that the confrontation . . . infringed'his right to due process of law”); cf. Halliday v. United States, 394 U. S. 831, 833 (1969). Of course, it remains true that “retaliatory motivation” may be “difficult to prove in any individual case.” North Carolina v. Pearce, 395 U. S., at 725 n. 20. And, this is certainly one of the reasons why the Court in Pearce adopted prophylactic rules. Similar problems of proof prompted the decisions in Miranda and Wade, but such problems in themselves were not sufficient to warrant retrospective application. We reiterate here what the Court has repeatedly said in retro-activity cases: “[W]e do not disparage a constitutional guarantee in any manner by declining to apply it retroactively.” Johnson v. New Jersey, 384 U. S., at 728; cf. Linkletter v. Walker, 381 U. S. 618, 629 (1965). Compare Berger v. California, 393 U. S. 314 (1969), and Roberts v. Russell, 392 U. S. 293 (1968), with Adams v. Illinois, 405 U. S. 278 (1972), and Johnson v. New Jersey, supra, at 731. We need not disagree with Mr. Justice Marshall’s notation, post, at 66 n. 9, that the result in" }, { "docid": "22384658", "title": "", "text": "post, p. 675 (Harlan, J., concurring in judgments and dissenting) . Compare Mishkin, The Supreme Court 1964 Term-Foreword: The High Court, the Great Writ, and the Due Process of Time and Law, 79 Harv. L. Rev. 56 (1965), with Schwartz, Retroactivity, Reliability, and Due Process: A Reply to Professor Mishkin, 33 U. Chi. L. Rev. 719 (1966). In rejecting the distinction between cases pending on direct review and those on collateral attack, the Court in Johnson v. New Jersey, 384 U. S. 719, 732 (1966), stated: “Our holdings in Linkletter and Tehan were necessarily limited to convictions which had become final by the time Mapp and Griffin were rendered. Decisions prior to Linkletter and Tehan had already established without discussion that Mapp and Griffin applied to cases still on direct appeal at the time they were announced.” In our more recent opinions dealing with the retroactive sweep of our decisions in the field of criminal procedure, the approach mandated by Linkletter has come to be summarized in terms of a threefold analysis directed at discovering: “ (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967); see also Desist v. United States, 394 U. S. 244, 249 (1969). See, e. g., Arsenault v. Massachusetts, 393 U. S. 5 (1968) (giving retroactive effect to the right to counsel provided in White v. Maryland, 373 U. S. 59 (1963)); McConnell v. Rhay, 393 U. S. 2 (1968) (giving retroactive effect to the right to counsel provided in Mempa v. Rhay, 389 U. S. 128 (1967)); Berger v. California, 393 U. S. 314 (1969) (giving retroactive effect to Barber v. Page, 390 U. S. 719 (1968)); Roberts v. Russell, 392 U. S. 293 (1968) (giving retroactive effect to Bruton v. United States, 391 U. S. 123 (1968)); Jackson v. Denno, 378 U. S. 368 (1964); Gideon v. Wainwright, 372 U. S. 335 (1963);" }, { "docid": "22696839", "title": "", "text": "practical effect of which, if applied to the past as well as the future, would be acutely disruptive of state practice and institutions. In those cases the pressures of comity and the hesitancy drastically to nullify state actions lent special force to the demand that the decision should not be applied “retroactively.” In DeStefano v. Woods, 392 U. S. 631 (1968), for example, these circumstances were deemed to warrant only prospective application of the right to trial by jury in state prosecutions that was established in Duncan v. Louisiana, 391 U. S. 145 (1968), and Bloom, v. Illinois, 391 U. S. 194 (1968). The Court so held even though it thereby let stand convictions that had been rendered pursuant to a faulty reading of the Constitution. Even where considerations that favor “non-retroactivity” exist, however, a new constitutional rule will not always be “non-retroactively” applied. The Court has insisted that all persons, not just those selected by the chance of the calendar, receive the benefit of newly declared constitutional commands that are central to the reliability of the fact-finding process at trial and without which innocent persons may have been adjudged guilty. See, e. g., Roberts v. Russell, 392 U. S. 293 (1968) (holding retroactive Bruton v. United States, 391 U. S. 123 (1968)); McConnell v. Rhay, 393 U. S. 2 (1968) (holding retroactive Mempa v. Rhay, 389 U. S. 128 (1967)); Arsenault v. Massachusetts, 393 U. S. 5 (1968) (holding retroactive White v. Maryland, 373 U. S. 59 (1963)); Berger v. California, 393 U. S. 314 (1969) (holding retroactive Barber v. Page, 390 U. S. 719 (1968)); Gideon v. Wainwright, 372 U. S. 335 (1963); Griffin v. Illinois, 351 U. S. 12 (1956); Jackson v. Denno, 378 U. S. 368 (1964). In the present cases, the Court decides that the lawfulness of wiretaps and electronic eavesdropping occurring before December 18, 1967, will be controlled by Olmstead v. United States, supra, a decision that the Court agrees is a false and insupportable reading of the Constitution. The Court holds that the Fourth Amendment meant something quite different before Katz was decided" }, { "docid": "22673565", "title": "", "text": "381 U. S. 618 (1965). In Linkletter, the Court held that Map-p v. Ohio, 367 U. S. 643 (1961), which extended the Fourth Amendment exclusionary rule to the States, would not be applied retroactively to a state conviction that had become final before Mapp was decided. The Court explained that “the Constitution neither prohibits nor requires retrospective effect” of a new constitutional rule, and that a determination of retro-activity must depend on “weighting] the merits and demerits in each case.” 381 U. S., at 629. The Court’s decision not to apply Mapp retroactively was based on “the purpose of the Mapp rule; the reliance placed upon the [previous] doctrine; and the effect on the administration of justice of a retrospective application of Mapp” 381 U. S., at 636. See also Stovall v. Denno, 388 U. S. 293, 297 (1967) (retroactivity depends on “(a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards”). Shortly after the decision in Linkletter, the Court held that the three-pronged analysis applied both to convictions that were final and to convictions pending on direct review. See Johnson v. New Jersey, 384 U. S. 719, 732 (1966); Stovall v. Denno, 388 U. S., at 300. In the latter case, the Court concluded that, for purposes of applying the three factors of the analysis, “no distinction is justified between convictions now final . . . and convictions at various stages of trial and direct review.” Ibid. Thus, a number of new rules of criminal procedure were held not to apply retroactively either to final cases or to cases pending on direct review. See, e. g., Stovall v. Denno, supra; DeStefano v. Woods, 392 U. S. 631, 635, n. 2 (1968); Desist v. United States, 394 U. S. 244, 253-254 (1969); Daniel v. Louisiana, 420 U. S. 31 (1975) (per curiam). In United States v. Johnson, 457 U. S. 537 (1982), however, the Court shifted course. In that" }, { "docid": "22111563", "title": "", "text": "the failure to appoint counsel had been harmless error. 399 U. S., at 11. Not every Coleman claim would warrant an evi-dentiary hearing. Many attacks might be disposed of summarily, such as a challenge to a conviction resulting from a counseled guilty plea entered before any preju dice had materialized from an uncounseled preliminary-hearing. See Procunier v. Atchley, 400 U. S. 446 (1971). Even Stovall v. Denno, 388 U. S., at 299, the analogy frequently invoked by the plurality, held out the possibility of collateral relief in cases where prisoners could show that their lineups had imposed “such unfairness that [they] infringed [their] right to due process of law.” Conducting Coleman harmless-error hearings would not appear to be any more burdensome on the administration of criminal justice than have Stovall “fundamental fairness” post-conviction proceedings. In any event, whatever litigation might follow a holding of Coleman retrospectivity must be considered part of the price we pay for former failures to provide fair procedures. E. g., Eskridge v. Washington Prison Board, 357 U. S. 214 (1958) ; Gideon v. Wainwright, 372 U. S. 335 (1963); Jackson v. Denno, 378 U. S. 368 (1964), (see also Desist v. United States, 394 U. S. 244, 250 n. 15 (1969)); Reck v. Pate, 367 U. S. 433 (1961). Linkletter v. Walker, 381 U. S. 618, 640 (1965); Tehan v. Shott, 382 U. S. 406, 419 (1966); Johnson v. New Jersey, 384 U. S. 719, 736 (1966); Stovall v. Denno, 388 U. S. 293, 302 (1967); DeStefano v. Woods, 392 U. S. 631, 635 (1968); Desist v. United States, 394 U. S. 244, 255 (1969); Holliday v. United States, 394 U. S. 831, 835 (1969); Mackey v. United States, 401 U. S. 667, 713 (1971). It was suggested in Stovall v. Denno, supra, at 301, that a prospective-only holding would violate the Art. Ill requirement of ease or controversy. But see England v. Louisiana State Board of Medical Examiners, 375 U. S. 411, 422 (1964), where the Court exempted the petitioner from its holding. See also Johnson v. New Jersey, supra, at 733. While I subscribe" }, { "docid": "22384659", "title": "", "text": "“ (a) the purpose to be served by the new standards, (b) the extent of the reliance by law enforcement authorities on the old standards, and (c) the effect on the administration of justice of a retroactive application of the new standards.” Stovall v. Denno, 388 U. S. 293, 297 (1967); see also Desist v. United States, 394 U. S. 244, 249 (1969). See, e. g., Arsenault v. Massachusetts, 393 U. S. 5 (1968) (giving retroactive effect to the right to counsel provided in White v. Maryland, 373 U. S. 59 (1963)); McConnell v. Rhay, 393 U. S. 2 (1968) (giving retroactive effect to the right to counsel provided in Mempa v. Rhay, 389 U. S. 128 (1967)); Berger v. California, 393 U. S. 314 (1969) (giving retroactive effect to Barber v. Page, 390 U. S. 719 (1968)); Roberts v. Russell, 392 U. S. 293 (1968) (giving retroactive effect to Bruton v. United States, 391 U. S. 123 (1968)); Jackson v. Denno, 378 U. S. 368 (1964); Gideon v. Wainwright, 372 U. S. 335 (1963); Douglas v. California, 372 U. S. 353 (1963); Griffin v. Illinois, 351 U. S. 12 (1956). The Fourth Amendment cases do not stand alone. We have reached similar results in holding nonretroactive new interpretations of the Fifth Amendment’s privilege against compelled self-incrimination, although some ramifications of the privilege have more connection with trustworthy results than does the exclusionary rule designed to enforce the Fourth Amendment. See Tehan v. Shott, 382 U. S. 406, 414-415, n. 12 (1966); Johnson v. New Jersey, 384 U. S. 719, 730 (1966); Desist v. United States, 394 U. S., at 249-250, n. 14; cf. Mackey v. United States, post, at 674-675. So, too, the right to jury trial secured by the Sixth Amendment “generally tends to prevent arbitrariness and repression,” DeStefano v. Woods, 392 U. S. 631, 633 (1968), and the holdings in United States v. Wade, 388 U. S. 218 (1967), and Gilbert v. California, 388 U. S. 263 (1967), carry implications for the'reliability of identification testimony. But both Duncan v. Louisiana, 391 U. S. 145 (1968), obligating the" } ]

[ { "docid": "22850172", "title": "", "text": "not require a different test here for “substantial similarity”, nor do they reduce the protection from copying afforded Novelty’s design by its copyright. . The key to the “ordinary observer” test is therefore the similarities rather than the differences. Only a slavish copy would have no differences and “[n]o one disputes that the copyright extends beyond a photographic reproduction of the design.” Peter Pan Fabrics, Inc. v. Martin Weiner Corp., supra, 274 F.2d at 489. Cf. Concord Fabrics, Inc. v. Marcus Bros. Textile Corp., 409 F.2d 1315, 1316 (2d Cir. 1969) (“nature of [the] differences only tends to emphasize the extent to which the defendant has deliberately copied from the plaintiff’). . As the District Court found, both fabrics use brown and camel or beige on a light-colored background to form a plaid design consisting of intersecting diamonds with an interior dimension of approximately four inches. And in each fabric, one series of diamonds is formed by a stripe which is somewhat broader than the other. When the Joan Fleetwood Spice fabric is placed over a portion of the Novelty fabric, the design, dimensions and colors match-up and the appearance is of one fabric. . Appellant has alleged that if Fleetwood Spice infringes Style 253, then at least some of Joan’s other fabrics also infringe because they are simply expressions of the Fleetwood design in different colors. Indeed, testimony offered by Joan appears to concede that differences in the appearance of some of the Joan fabrics result essentially from variations in color and texture of yarn, rather than differences in a black and white rendering of the design. However, some of the color variations create such different effects that the ordinary observer might not consider them similar. There thus arises the issue of whether a fabric infringes a copyrighted design when it employs the black and white outline of a design that is copied from a copyrighted design but expresses that outline in colors so different from those used in the fabric of the copyrighted design that no substantial similarity results. While recognizing that there may be color combinations, beyond" } ]

[ { "docid": "11910611", "title": "", "text": "more copies of the publication than authorized, publishing the photographs in derivative publications without permission, and distributed the publication outside of the authorized distribution area.”) (collecting cases; citations omitted); Quadratec, Inc. v. Turn 5, Inc., Civil Action No. 13-6384, 2015 WL 4876314, at *4 (E.D. Pa. Aug. 13, 2015) (denying motion to dismiss copyright claim and explaining that \"[a]lthough Plaintiff did not provide the exact date of infringement for each of the” copyrighted images, \"it is not fatal to [Plaintiff’s] copyright claim that the Complaint fails to specify how each particular photograph has been infringed”) (quoting Warren v. John Wiley & Sons, Inc., 952 F.Supp.2d 610, 618 (S.D.N.Y. 2013)) (internal quotation marks omitted); Young-Wolff v. McGraw-Hill Sch. Ed. Holdings, LLC, No. 13-CV-4372 (KMW), 2015 WL 1399702, at *3-4 (S.D.N.Y. Mar. 27, 2015) (denying motion to dismiss similar copyright claim); see also Briggs v. Gall, Civil Action No. 13-5395, 2014 WL 12616828, at *5 (E.D. Pa. Apr. 21, 2014) (rejecting argument that complaint failed to plead infringement where plaintiff alleged that defendant reproduced, distributed, and displayed copyrighted works without permission). . Young-Wolff, 2015 WL 1399702 at *2 (allegation that infringement occurred \"shortly after” the defendants licensed plaintiff's work was sufficient to state a copyright claim). But see Yamashita v. Scholastic, Inc., No. 16-CV-9201 (KBF), 2017 WL 74738, at *2 (S.D.N.Y. Jan. 5, 2017) (dismissing similar copyright claim). . See Clifton, 152 F.Supp.3d at 1225 (rejecting argument that plaintiff should have better investigated copyright claim before filing suit because the facts needed to substantiate plaintiff's allegations were \"peculiarly within the possession and control” of the defendant) (internal quotation marks omitted). . Section 1404(a) provides that “[f|or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any district or division where it might have been brought....” . Piper Aircraft Co. v. Reyno, 454 U.S. 235, 241, 255, 102 S.Ct. 252, 70 L.Ed.2d 419 (1981) (citations omitted). . Atl. Marine Constr. Co. v. U.S. Dist. Court, -U.S.-, 134 S.Ct. 568, 581, 187 L.Ed.2d 487 (2013) (footnote omitted). . Compare Krist v. Pearson Educ.," }, { "docid": "21615578", "title": "", "text": "§ 411(a)’s registration requirement is a mandatory precondition to suit that ... district courts may or should enforce sua sponte by dismissing copyright infringement claims involving unregistered works.”). Gattoni’s Complaint alleges that the Photograph is the subject of an application for a copyright registration and that a copyright registration number is “pending.” See Compl. ¶ 9. Exhibit C to the Complaint clearly shows an “application,” rather than a certificate of registration, for the Photograph. Courts are split over the interpretation of the pre-suit registration requirement set forth in § 411(a) — that is, whether a work qualifies as registered under the statute when an application for copyright is pending. See Patrick Collins, Inc. v. Does 1-26, 843 F.Supp.2d 565, 568 (E.D. Pa. 2011) (discussing the split among circuits and within copyright law treatises); see also Cosmetic Ideas, 606 F.3d 612 at 615-16 (cataloging cases and noting circuit split). Some courts have taken an “ ‘application approach,’ under which a pending copyright registration application is sufficient to satisfy § 411(a),” while others have taken a “ ‘registration approach,’ under which a certificate of registration issued by the Copyright Office is a prerequisite to suit.” N. Jersey Media Grp. Inc. v. Sasson, No. CIV. 2:12-3568 WJM, 2013 WL 74237, at *3 (D.N.J. Jan. 4, 2013) (adopting the “registration approach” and holding that “until [the plaintiff] holds a certificate of copyright registration ... [it] cannot state a prima facie claim of copyright infringement for any of those works”); see also Patrick Collins, 843 F.Supp.2d at 570 (“Congress chose the registration ap proach, and we must abide by that decision.”). Although the Second Circuit has not addressed this specific question, “[district courts in the Second Circuit require that a plaintiff ‘either hold a valid copyright registration or have applied and been refused a registration as a prerequisite to filing a civil claim.’” Lumetrics, Inc. v. Blalock, 23 F.Supp.3d 138, 143 (W.D.N.Y. 2014) (citing Muench Photography, Inc. v. Houghton Mifflin Harcourt Publ’g, Co., No. 09 CV 2669(LAP), 2012 WL 1021535, at *2 (S.D.N.Y. Mar. 26, 2012)); see also Accurate Grading Quality Assurance, Inc. v. Thorpe," }, { "docid": "14051514", "title": "", "text": "itself will frequently fail to demonstrate even the minimum level of creativity necessary for copyright protection, such protection is available for the ‘association, presentation, and combination of the ideas and thought which go to make up the [author’s] literary composition.’ ”) (internal citation omitted) (quoting Nutt v. Nat’l Inst. Inc. for the Improvement of Memory, 31 F.2d 236, 237 (2d Cir.1929)). Considering only those elements that alone are protectible “would result in almost nothing being copyrightable because original works broken down into their composite parts would usually be little more than basic unprotectible elements like letters, colors and symbols.” Boisson, 273 F.3d at 272. Accordingly, the Second Circuit has recognized that “the defendant may infringe on the plaintiffs work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when numerous aesthetic decisions embodied in the plaintiffs work ... are considered in relation to one another.” Tufenkian Imp./Exp. Ventures, Inc., 338 F.3d at 134. The Court of Appeals therefore “ha[s] disavowed any notion that ‘[courts] are required to dissect [the works] into their separate components, and compare only those elements which are in themselves copyrightable.’ ” Gaito, 602 F.3d at 66 (quoting Knitwaves, Inc., 71 F.3d at 1002). Instead, courts must be “principally guided ‘by comparing the contested [work’s] total concept and overall feel’ with that of the allegedly infringed work, as instructed by [their] good eyes and common sense.” Gaito, 602 F.3d at 66 (quoting Tufenkian Imp./Exp. Ventures, Inc., 338 F.3d at 133). This “total-concept-and-feel locution functions as a reminder that, while the infringement analysis must begin by dissecting the copyrighted work into its component parts in order to clarify precisely what is not original, infringement analysis is not simply a matter of ascertaining similarity between components viewed in isolation.” Tufenkian Imp./Exp. Ventures, Inc., 338 F.3d at 134 (emphasis in original). Rather, “in the end, [the] inquiry necessarily focuses on whether the alleged infringer has misappropriated ‘the original way in which the author has selected, coordinated, and arranged the elements of his or her work.’ ” Gaito, 602 F.3d at" }, { "docid": "12658313", "title": "", "text": "92, 99 (2d Cir.1999) (internal quotation marks and emphasis omitted)). . Defendants concede for the purposes of this motion that they had access to plaintiff's design, see Def. Mem. [DI 41] at 12 n. 9, and the Court assumes the patterns are sufficiently similar to be probative of copying. Peter F. Gaito Architecture, 602 F.3d at 63; Hamil, 193 F.3d at 99. . Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). . Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir.1995) (quoting Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 766 (2d Cir.1991)). . Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.1986). . Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 133-34 (2d Cir.2003) (‘'[I]n£ringement analysis is not simply a matter of ascertaining similarity between components viewed in isolation. For the defendant may infringe on the plaintiff’s work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when numerous aesthetic decisions ... are considered in relation to one another.”) (citations omitted). . Boisson v. Banian, Ltd., 273 F.3d 262, 268 (2d Cir.2001). . Mulberry Thai Silks, Inc. v. K & K Neckwear, Inc., 897 F.Supp. 789, 792 (S.D.N.Y.1995). . Sheldon v. Metro-Goldwyn Pictures Corp., 81 F.2d 49, 54 (2d Cir.1936), cert. denied, 298 U.S. 669, 56 S.Ct. 835, 80 L.Ed. 1392 (1936). . See Hamil, 193 F.3d at 98; Fonar Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir.1997). . Deck of Sumeer Kakar [DI 43], Ex. F(public domain designs featured in Tapónese Optical and Geometrical Art: 746 Copyright-Free Designs for Artists and Craftsmen). . Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930, 125 S.Ct. 2764, 162 L.Ed.2d 781 (2005) (internal citations omitted). . Matthew Bender & Co., Inc. v. West Publishing Co., 158 F.3d 693, 706 (2d Cir.1998) (quoting Gershwin Publishing Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159, 1162 (2d Cir.1971)). . Gershwin Publishing Corp., 443 F.2d at 1162. . First Amended Complaint (\"FAC”) [DI 32] ¶¶ 11," }, { "docid": "14733319", "title": "", "text": "In other words, it is not fatal to Young-Wolff s copyright claim that the Complaint fails to specify how each particular photograph has been infringed. See Frerck v. Pearson Educ., Inc., No. 11 Civ. 5319, 2012 WL 1280771, at *3 (N.D.Ill. Apr. 16, 2012) (rejecting Pearson’s argument that, “in order to state a claim for copyright infringement, Frerck must plead specific details as to each infringing act,” as ,“[t]his requirement would impose a higher burden on copyright claims than is required under the federal rules. Notice pleading, not fact pleading, is all that is required to survive a motion to' dismiss under Rule 12(b)(6)”). Finally, Rubin has alleged that Wiley printed her photograph, without permission and in violation of its license, in (1) books aside from the 6th Edition; (2) more than 100,000 copies of the 6th Edition; and (3) publications outside the United States. (¶¶ 48-50). Again, these allegations sufficiently inform Wiley as to how it has purportedly infringed Rubin’s copyright. 5. Conclusion Accordingly, all three Plaintiffs have sufficiently alleged: (1) which specific works have been infringed (2) that Plaintiffs registered and own the copyright to those work; and (3) in what way the works were infringed. Their copyright infringement claims, at least as to Wiley, therefore survive Wiley’s motion to dismiss. C. The Copyright Claim against Newman and Zerter Rubin also alleges copyright infringement against Newman and Zerter in their personal capacities. (Rubin Compl. at ¶¶ 51-52.) A corporate employee can be held personally liable for copyright infringement under a theory of contributory liability “ ‘if the officer is a moving, active, conscious force behind [the defendant corporation’s] infringement.’ ” Mattel, Inc. v. Robarb’s, Inc., No. 00 Civ. 4866(RWS), 2001 WL 913894, at *8 (S.D.N.Y. Aug. 14, 2001) (citations omitted) (alteration in original); see also Softel, Inc. v. Dragon Med. and Scientific Commc’ns, 118 F.3d 955, 971 (2d Cir.1997) (“To establish contributory infringement, Softel was required to show that Hodge ‘authorized the [infringing] use.’” (citation omitted) (alterations in original)); Forties B LLC v. Am. W. Satellite, Inc., 725 F.Supp.2d 428, 436 (S.D.N.Y.2010) (noting that contributory infringement requires a" }, { "docid": "23229269", "title": "", "text": "in as good a position to determine the question as is the district court.”). “The standard test for substantial similarity between two items is whether an ‘ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard [the] aesthetic appeal as the same.’ ” Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101, 111 (2d Cir.2001) (quoting Hamil Am., 193 F.3d at 100). In applying the so-called “ordinary observer test,” we ask whether “an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work.” Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir.1995) (internal quotation marks omitted). On occasion, though, we have noted that when faced with works “that have both protectible and unprotectible elements,” our analysis must be “more discerning,” Fisher-Price, Inc. v. Well-Made Toy Mfg. Corp., 25 F.3d 119, 123 (2d Cir.1994), and that we instead “must attempt to extract the unprotectible elements from our consideration and ask whether the protectible elements, standing alone, are substantially similar,” Knitwaves, Inc., 71 F.3d at 1002 (emphasis omitted). No matter which test we apply, however, we have disavowed any notion that “we are required to dissect [the works] into them separate components, and compare only those elements which are in themselves copyrightable.” Id. at 1003; see Boisson, 273 F.3d at 272-73. Instead, we are principally guided “by comparing the contested design’s ‘total concept and overall feel’ with that of the allegedly infringed work,” Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 133 (2d Cir.2003); see Boisson, 273 F.3d at 272; Knitwaves Inc., 71 F.3d at 1003, as instructed by our “good eyes and common sense,” Hamil Am., 193 F.3d at 102 (alteration omitted). This is so because “the defendant may infringe on the plaintiffs work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when numerous aesthetic decisions embodied in the plaintiffs work of art — the excerpting, modifying, and arranging of [unprotectible components] ... — are considered in relation to one" }, { "docid": "3099639", "title": "", "text": "information and belief, Defendants engaged in the infringing conduct after the invoice date listed on the Lefkowitz Chart. (FAC ¶ 28). This allegation provides the starting date on which Defendants are alleged to have infringed, and therefore sufficiently identifies the time period during which the infringement may have occurred. See E. Broadcasting Am. Corp. v. Universal Video, Inc., No. 04 Civ. 5654(DGT), 2006 WL 767871, at *3 (E.D.N.Y. Mar. 24, 2006) (holding that plaintiff sufficiently alleged the time frame of the infringing activity where the complaint alleged that the infringement took place on or before a particular date); cf. Blagman v. Apple Inc., No. 12 Civ. 5453(ALC)(JCF), 2013 WL 2181709, at *3 (S.D.N.Y. May 20, 2013) (holding that the plaintiff adequately pleaded the requisite time period where although he did not “specify the time period of infringement,]” plaintiff did allege the defendants’ “continued infringement, which courts in this Circuit have held satisfactory to survive a motion to dismiss” (collecting cases)). For a portion of the Lefkowitz Images, Plaintiff identifies the publication and information regarding the license limits. (FAC, Ex. I). The fact that Plaintiff did not include this information for all instances of infringement does not render the FAC insufficient, because Plaintiff need not include these allegations in order to plead his claim for copyright infringement adequately. See Wu v. Pearson Educ., Inc., No. 09 Civ. 6557(RJH), 2010 WL 3791676, at *6 (S.D.N.Y. Sept. 29, 2010) (holding that plaintiffs complaint alleged a claim for copyright infringement where plaintiff alleged that defendant had exceeded the allowed print run on the licenses governing the works at issue without first seeking prior authorization or paying any additional licensing fee); Sensi v. Houghton Mifflin Harcourt Publ’g Co., et al., No. 13 Civ. 2891(GBD) (finding complaint sufficient where plaintiff did not include the license terms with its complaint: “I think the complaint minimally puts the defendant on notice that defendant was given licenses directly by the plaintiff and by the third party that they exceeded those licenses by exceeding the limited print run, and I [do not] think the burden is on the plaintiff at" }, { "docid": "22575906", "title": "", "text": "(citing Citigroup Inc. v. City Holding Co., 97 F.Supp.2d 549, 568 (S.D.N.Y.2000)). Although, as noted, Penguin does allege copyright infringement through the “distribution” of its copyrighted work over the Internet, Compl. ¶ 28, Penguin does not specifically allege the loss of customers or other direct harm in New York, distinguishing this case from most of those cited, see, e.g., id.; Citigroup, 97 F.Supp.2d at 568. But these cases can be read to suggest that the injury from the infringement of an intellectual property right committed outside of New York may be a New York injury for section 302(a)(3) purposes if it adversely affects the plaintiff and his intellectual property in New York. 2. Legal Arguments Against Deeming New York To Be the Situs of Injury. Looking not to domicile or residence but to lost business at the site of the allegedly infringing action taken by the defendant, some other district courts in this Circuit have concluded that injuries resulting from intellectual property torts occur where the infringing action is taken. See e.g., Art Leather Mfg. Co., Inc. v. Albumx Corp., 888 F.Supp. 565, 568 (S.D.N.Y.1995) (“A patent holder suffers economic loss at the place where an infringing sale is made because the holder loses business there.”); Freeplay Music, Inc. v. Cox Radio, Inc., No. 04 Civ. 5238, 2005 WL 1500896, at *8, 2005 U.S. Dist. LEXIS 12397 at *24 (S.D.N.Y. June 23, 2005) (“In cases of commercial torts, the place of injury will usually be located where the critical events associated with the dispute took place. In this case, the critical events are [the defendant’s] alleged unlicensed use of [the plaintiffs] recordings and compositions.” (internal quotation marks and citation omitted)). The district court relied on this line of cases to conclude that Penguin’s injury occurred where the book was impermissibly copied, since that is where the sale was lost. See Penguin, 2009 WL 1069158, at *4, 2009 U.S. Dist. LEXIS 34032, at *11-12. V. Due Process The question whether defining the situs of injury here as New York so as to give rise to jurisdiction in New York over Penguin’s" }, { "docid": "610494", "title": "", "text": "infringing conduct of another. . The requirements of Rule 8, F.R. Civ. P., have been made applicable to copyright actions despite Rule 81(a)(1), F.R. Civ. P., which states that the Federal Rules of Civil Procedure do not apply to copyright actions under Title 17, U.S.C. See Foster v. WNYC-TV, 1989 WL 146277 at 4 (S.D.N.Y. Nov. 20, 1989) (Keenan, J.). .Moreover, plaintiff's allegations that his photograph was \"contributorily infringed by the separate but coordinated acts of all defendants,” which appears in the beginning of the proposed second amended complaint in a separate section entitled \"Summary of Allegations”, (Second Am. Compl. ¶ 4), and that \"defendants have been cooperating with each other in the respective publishing” of the McNeely photograph, (id. ¶ 14), are equally insufficient. . The caption to count IV confusingly refers to plaintiffs § 43(a) claim as arising under 15 U.S.C. §§ 1125(a) and 1114(1). (Second Am. Compl. p. 15.) 15 U.S.C. § 1114 actually corresponds to § 32 of the Lanham Act, which provides a cause of action for trademark infringement, as opposed to § 43(a), which addresses unfair competition. Although the elements of both causes of action are substantially similar, \" § 32 applies only to registered trademarks”, whereas \" § 43(a) ... claims may be brought to enforce unregistered trademarks.” Monsanto Co. v. Haskel Trading, Inc., 13 F.Supp.2d 349, 355 n. 3 (E.D.N.Y.1998) (quotation marks omitted) (quoting Gucci America, Inc. v. Action Activewear, Inc., 759 F.Supp. 1060, 1063 n. 3 (S.D.N.Y.1991) (Leisure, J.)). See also Sports Authority, Inc. v. Prime Hospitality Corp., 89 F.3d 955, 960 (2d Cir.1996) (stating that in order to plead a claim for trademark infringement pursuant to § 34(a) plaintiff \"must show that [he] has a valid mark that is entitled to protection.”). Count IV fails to allege that plaintiff has a valid trademark and any suggestion that he has a claim pursuant to § 1114(1) is frivolous. . For the jurisdictional reasons stated infra page 234, the court declines to address plaintiff's state law claims at this time. . Since defendant has challenged the court's subject matter jurisdiction, the court" }, { "docid": "15603467", "title": "", "text": "similarity, a plaintiff must show “ ‘(i) that it was protected expression in the earlier work that was copied and (ii) that the amount that was copied is ‘more than de minimis.’ ’ ” Id. (quoting Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132, 137-38 (2d Cir.1998)); see also Feist Publ’ns, Inc. v. Rural Tel. Seru. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (holding that copyright infringement plaintiff must show valid copyright and copying of original elements of work). To determine substantial similarity, a court must decide “whether the average lay observer would recognize the challenged material as having been copied from the copyrighted work.” Crane v. Poetic Prods., 549 F.Supp.2d 566, 569 (S.D.N.Y.2008) (quoting Flaherty v. Filardi, 388 F.Supp.2d 274, 286 (S.D.N.Y.2005)). When similar works resemble each other only in unprotected aspects — for example, when similarities inhere in ideas, which are by definition unprotected, or in expression that is not proprietary to plaintiff — the defendant prevails. Bill Diodato Photography, LLC v. Kate Spade, LLC, 388 F.Supp.2d 382, 390 (S.D.N.Y.2005) (citing 4 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 13.03[B][2] (2005)); see also Tufenkian, 338 F.3d at 131 (“[Substantial similarity, we emphasize again, must be to that which is protected in the plaintiffs work.”). In some instances, substantial similarity may be an issue even where, as here, copying as a factual matter is established. As the Second Circuit has explained, there is a difference between “factual copying and actionable copying”: The former (probative similarity) requires only the fact that the infringing work copies something from the copyrighted work; the latter (substantial similarity) requires that the copying is quantitatively and qualitatively sufficient to support the legal conclusion that infringement (actionable copying) has occurred. Ringgold v. Black Entm’t T.V. Inc., 126 F.3d 70, 75 (2d Cir.1997). In other words, even when it is undisputed that copying as a factual matter occurred, there still may be an issue as to whether the copying is actionable. Id. The legal maxim “de minimis non curat lex ” — “the law does" }, { "docid": "3099638", "title": "", "text": "not necessary; the statement need only ‘give the defendant fair notice of what the ... claim is and the grounds upon which it rests.’ ” ' Erickson, 551 U.S. at 93, 127 S.Ct. 2197 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955). The FAC does just that. It identifies Plaintiffs copyright infringement claim, the images that Plaintiff claims were infringed, and the bases for Plaintiffs assertion that those images were infringed. Moreover, the FAC further alleges that, upon information and belief, Defendants have a “general practice of infringing copyrights in its use of photographs in its publications.” (FAC ¶ 22). In support of this allegation, Plaintiff identifies six other lawsuits filed against Defendants in which the plaintiff in those cases brought the same claims that Plaintiff brings here. (Id.). Plaintiff also provides examples of where Defendants allegedly admitted to unauthorized use of photographs that they licensed. (Id. at ¶ 24). These allegations, taken as a whole, establish the plausibility of Plaintiffs claim. Plaintiff has also adequately alleged a time period by asserting that, upon information and belief, Defendants engaged in the infringing conduct after the invoice date listed on the Lefkowitz Chart. (FAC ¶ 28). This allegation provides the starting date on which Defendants are alleged to have infringed, and therefore sufficiently identifies the time period during which the infringement may have occurred. See E. Broadcasting Am. Corp. v. Universal Video, Inc., No. 04 Civ. 5654(DGT), 2006 WL 767871, at *3 (E.D.N.Y. Mar. 24, 2006) (holding that plaintiff sufficiently alleged the time frame of the infringing activity where the complaint alleged that the infringement took place on or before a particular date); cf. Blagman v. Apple Inc., No. 12 Civ. 5453(ALC)(JCF), 2013 WL 2181709, at *3 (S.D.N.Y. May 20, 2013) (holding that the plaintiff adequately pleaded the requisite time period where although he did not “specify the time period of infringement,]” plaintiff did allege the defendants’ “continued infringement, which courts in this Circuit have held satisfactory to survive a motion to dismiss” (collecting cases)). For a portion of the Lefkowitz Images, Plaintiff identifies the publication and information regarding the" }, { "docid": "11910610", "title": "", "text": "F.3d at 210 (citation and internal quotation marks omitted). . Santiago, 629 F.3d at 128 (citations and internal quotation marks omitted). . Malibu Media, LLC v. Doe, 82 F.Supp.3d 650, 653 (E.D. Pa. 2015) (citing Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197, 206 (3d Cir. 2002)). . Doc. No. 9-1 (Memorandum of Law in Support of Defendant’s Motion to Dismiss) at 5. . The Court declines to adopt Defendant's suggestion that a heightened pleading standard applies based on Gee v. CBS, Inc., 471 F.Supp. 600, 643 (E.D. Pa. 1979), which predates Twombly and Iqbal by decades. Even if the Court were to apply such a standard, Plaintiff has adequately alleged specific violations of his copyrights. . See Clifton v. Houghton Mifflin Harcourt Publ'n Co., 152 F.Supp.3d 1221, 1224 (N.D. Cal. 2015) (“After Twombly and Iqbal, in the book publishing context, numerous courts have denied motions to dismiss copyright infringement claims where the plaintiff alleged ... that the defendant exceeded the limitations in licenses for photographs by, for example, printing more copies of the publication than authorized, publishing the photographs in derivative publications without permission, and distributed the publication outside of the authorized distribution area.”) (collecting cases; citations omitted); Quadratec, Inc. v. Turn 5, Inc., Civil Action No. 13-6384, 2015 WL 4876314, at *4 (E.D. Pa. Aug. 13, 2015) (denying motion to dismiss copyright claim and explaining that \"[a]lthough Plaintiff did not provide the exact date of infringement for each of the” copyrighted images, \"it is not fatal to [Plaintiff’s] copyright claim that the Complaint fails to specify how each particular photograph has been infringed”) (quoting Warren v. John Wiley & Sons, Inc., 952 F.Supp.2d 610, 618 (S.D.N.Y. 2013)) (internal quotation marks omitted); Young-Wolff v. McGraw-Hill Sch. Ed. Holdings, LLC, No. 13-CV-4372 (KMW), 2015 WL 1399702, at *3-4 (S.D.N.Y. Mar. 27, 2015) (denying motion to dismiss similar copyright claim); see also Briggs v. Gall, Civil Action No. 13-5395, 2014 WL 12616828, at *5 (E.D. Pa. Apr. 21, 2014) (rejecting argument that complaint failed to plead infringement where plaintiff alleged that defendant reproduced, distributed, and displayed" }, { "docid": "12658312", "title": "", "text": "2013 WL 4774717 (S.D.N.Y. Sept. 6, 2013). . E.g., Finley Lines Joint Prot. Bd. Unit 200 v. Norfolk S. Corp., 109. F.3d 993, 995-97 (4th Cir.1997). Yosef v. Passamaquoddy Tribe, 876 F.2d 283 (2d Cir.1989), overruled on other grounds, Chemiakin v. Yefimov, 932 F.2d 124, 129 (2d Cir.1991), did not compel a different result. In Yosef, the Court of Appeals ruled that the district court retained jurisdiction over the case despite plaintiff's attempt voluntarily to dismiss the action. Because the parties relied upon evidentiary materials beyond the complaint in briefing a Rule 12(b)(6) motion to dismiss and because the district court did not exclude the materials outside the pleadings, the Second Circuit ruled that the \"motion to dismiss was transformed into a request for summary judgment,” id. at 286, and the voluntary dismissal was ineffective. . 17U.S.C. § 505. . See, e.g., Goldberg v. Danaher, 599 F.3d 181, 183-84 (2d Cir.2010). . Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 63 (2d Cir.2010) (quoting Hamil Am. Inc. v. GFI, 193 F.3d 92, 99 (2d Cir.1999) (internal quotation marks and emphasis omitted)). . Defendants concede for the purposes of this motion that they had access to plaintiff's design, see Def. Mem. [DI 41] at 12 n. 9, and the Court assumes the patterns are sufficiently similar to be probative of copying. Peter F. Gaito Architecture, 602 F.3d at 63; Hamil, 193 F.3d at 99. . Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir.1960). . Knitwaves, Inc. v. Lollytogs Ltd. (Inc.), 71 F.3d 996, 1002 (2d Cir.1995) (quoting Folio Impressions, Inc. v. Byer California, 937 F.2d 759, 766 (2d Cir.1991)). . Walker v. Time Life Films, Inc., 784 F.2d 44, 48 (2d Cir.1986). . Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 133-34 (2d Cir.2003) (‘'[I]n£ringement analysis is not simply a matter of ascertaining similarity between components viewed in isolation. For the defendant may infringe on the plaintiff’s work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when" }, { "docid": "6222364", "title": "", "text": "three related doctrines of merger, scenes a faire, and the exclusion of functional elements from copyright protection, Bus. Mgmt. Int’l. Inc. v. Labyrinth Bus. Solutions, LLC, No. 05 Civ. 6738, 2009 WL 790048, at *12 (S.D.N.Y. Mar. 24, 2009). See generally eScholar, LLC v. Otis Educ. Sys., Inc., No. 04 Civ. 4051, 2005 WL 2977569 (S.D.N.Y. Nov. 3, 2005) (describing the scope of copyright protection in computer programs). While the fact of registration of the four versions is prima facie evidence that there is something new, original, and protectable within each of those versions, without any indication of the extent to which those programs are protected, the mere fact that substantial portions of those programs may be incorporated into unregistered versions provides no evidence that the overlap encompasses protected characteristics. Nor can it be ascertained on the existing record whether, to the extent there is any overlap in protected components, it would be more than de minimis, as would be required for the copying of an unregistered version to infringe upon the registered version. Cf. Tufenkian Import/Export Ventures. Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir.2003) (copyright infringement plaintiff must establish that unauthorized copying was more than de minimis) (internal quotations omitted). As a result, it would be patently inappropriate to enjoin use of non-registered versions — even if only to protect components of the registered versions — on such an incomplete showing. Nor is it appropriate to allow SimplexGrinnell to submit additional evidence to make the necessary showing. Although the Court has discretion to amend its Opinion to prevent “manifest injustice,” the circumstances presented here do not remotely approach that standard. As SimplexGrinnell itself recognizes, the relief it presently seeks would not alter the substantive obligations between the parties. (.E.g., P. Reply 4.) Accordingly, the Court sees no need to compensate for SimplexGrinnell’s failures of proof at trial. SimplexGrinnell contends that, to the extent it failed to prove its case, such failure was occasioned not by its own inadvertence, but rather by the Court’s instruction that the relevant consideration was not — as the parties spent" }, { "docid": "15603466", "title": "", "text": "allegations,’ ” and will not defeat the motion. Gavish v. Revlon, Inc., No. 00 Civ. 7291(SHS), 2004 WL 2210269, at *10, 2004 U.S. Dist. LEXIS 19771, at *10 (S.D.N.Y. Sept. 30, 2004) (quoting Citibank, N.A. v. Itochu Int’l, Inc., No. 01 Civ. 6007(GBD), 2003 WL 1797847, at *1, 2003 U.S. Dist LEXIS 5519, at *2 (S.D.N.Y. Apr. 4, 2003)). B. The Merits 1. Copyright Infringement It is undisputed as a factual matter that Paramount copied the Silver Slugger, as an actual Silver Slugger appears in the Film. Paramount argues, however, that the use of the pinball machine was so trivial that the copying is not actionable, a. Applicable Legal Standards A copyright holder enjoys the right to reproduce and display publicly a copyrighted work. 17 U.S.C. § 106(1), (5). To prevail on a claim of copyright infringement, a plaintiff must prove that (1) unauthorized copying of the copyrighted work occurred, and (2) the infringing work is substantially similar. Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 131 (2d Cir.2003). To prove substantial similarity, a plaintiff must show “ ‘(i) that it was protected expression in the earlier work that was copied and (ii) that the amount that was copied is ‘more than de minimis.’ ’ ” Id. (quoting Castle Rock Entm’t, Inc. v. Carol Publ’g Group, Inc., 150 F.3d 132, 137-38 (2d Cir.1998)); see also Feist Publ’ns, Inc. v. Rural Tel. Seru. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991) (holding that copyright infringement plaintiff must show valid copyright and copying of original elements of work). To determine substantial similarity, a court must decide “whether the average lay observer would recognize the challenged material as having been copied from the copyrighted work.” Crane v. Poetic Prods., 549 F.Supp.2d 566, 569 (S.D.N.Y.2008) (quoting Flaherty v. Filardi, 388 F.Supp.2d 274, 286 (S.D.N.Y.2005)). When similar works resemble each other only in unprotected aspects — for example, when similarities inhere in ideas, which are by definition unprotected, or in expression that is not proprietary to plaintiff — the defendant prevails. Bill Diodato Photography, LLC v. Kate Spade," }, { "docid": "19287630", "title": "", "text": "Erickson Beamon Ltd. v. CMG Worldwide, Inc., No. 12 Civ. 5105 (NRB), 2014 WL 3950897, at *9 (S.D.N.Y. Aug. 13, 2014) (“Because we have found that defendants have stated a claim for unfair competition under Section 43(a), the only remaining question is whether defendants have adequately pled that plaintiff acted in bad faith.”). Plaintiff alleges that each Defendant “is aware that [its]- continued use of the PINKY mark violates the law and Pulse’s intellectual property rights, such that the Defendants ... each ... kno[w] and/or [are] aware that Plaintiff owns the rights to the mark PINKY in connection with apparel.” (FAC ¶ 34). Plaintiff bolsters this claim with specific factual allegations regarding Vesture’s own attempts to acquire trademark protection for the PINKY LOS ANGELES mark, .through which process Vesture, learned of (i) Pulse’s rights to the PINKY mark, and (ii) the infringing nature of Vesture’s proposed use of a similar mark. (See id; at ¶¶ 5, 6, 27-32). The remaining. Defendants are not alleged to have specific knowledge of Vesture’s history with the trademark office, but are alleged to have acquired goods 'through Vesture, including the purportedly infringing garments at issue. (Id. at ¶ 3). Plaintiff, has sufficiently alleged bad faith on the part of Vesture. See George Nelson Found. v. Modernica, Inc., 12 F.Supp.3d 635, 652 (S.D.N.Y.2014) (“Bad faith may be inferred from the junior user’s actual or constructive knowledge of the senior user’s mark.”) (quoting Star Indus., Inc. v. Bacardi & Co., 412 F.3d 373, 389 (2d Cir.2005)). Its basis for asserting bad faith on the part of the Retailer Defendants is decidedly thinner, but given the clear assertion that these Defendants acted with knowledge of Plaintiffs rights (see FAC ¶ 34), Plaintiff manages to clear the threshold for surviving a motion to dismiss. See, e.g., Hearts on Fire Co., LLC. v. L C Int’l Corp., No. 04 Civ. 2536 (LTS) (MHD), 2004 WL 1724932, at *4 (S.D.N.Y. July 30, 2004) (finding that a complaint asserting defendant “ ‘willfully, intentionally, and knowingly used a designation confusingly similar’ to Plaintiffs mark” sufficiently alleged bad faith, as “any determinations regarding" }, { "docid": "3099634", "title": "", "text": "1937)). In addition to the complaint, the Court may consider “any written instrument attached to the complaint as an exhibit, any statements or documents incorporated in it by reference, and any document upon which the complaint heavily relies.” In re Thelen LLP, 736 F.3d 213, 219 (2d Cir.2013). The Court may also consider any items of which judicial notice may be taken. L-7 Designs, Inc., 647 F.3d at 422. B. Analysis 1. Plaintiff Sufficiently Alleges a Claim for Copyright Infringement “[A] properly pleaded copyright infringement claim must allege [i] which specific original works are the subject of the copyright claim, [ii] that plaintiff owns the copyrights in those works, [iii] that the copyrights have been registered in accordance with the statute, and [iv] by what acts during what time the defendant infringed the copyright.” Kelly v. L.L. Cool J., 145 F.R.D. 32, 35 (S.D.N.Y.1992); accord Warren v. John Wiley & Sons, Inc., 952 F.Supp.2d 610, 616 (S.D.N.Y.2013); see generally Jorgensen v. Epic/Sony Records, 351 F.3d 46, 51 (2d Cir.2003). The FAC alleges that Plaintiff is the owner of an exclusive right under the copyright of the Lefkowitz Images (FAC ¶ 6), and that these images have been registered with the United States Copyright Office (id. at ¶7), thereby satisfying the second and third requirements for copyright infringement. Plaintiff has also adequately alleged the first requirement— which specific original works are the subject of the copyright claim — by including the Lefkowitz Chart as an exhibit to the FAC. See Schneider v. Pearson Educ., Inc., No. 12 Civ. 6392(JPO), 2013 WL 1386968, at *3 n. 3 (S.D.N.Y. Apr. 5, 2013) (holding that plaintiff alleged the specific works to which he owned the copyright were infringed upon where plaintiff listed the photographs at issue, and also indicated that the infringement was not limited to these works); but see Cole v. John Wiley & Sons, Inc., No. 11 Civ.2090(DF), 2012 WL 3133520, at *12 (S.D.N.Y. Aug. 1, 2012) (explaining that it is inadequate for Plaintiff “to base an infringement claim on overly-inclusive lists of copyrighted works” and “to list certain works that are" }, { "docid": "2131212", "title": "", "text": "dismiss stage. Compare id., with Poindexter, 2012 WL 1027639, at *3-4, 2012 U.S. Dist. LEXIS 42174, at *10 (concluding on a motion to dismiss that the use of a single note was de minimis for purpose of copyright to musical composition), and Pyatt, 2011 WL 2078531, at *6-8 (comparing total look and feel of original and allegedly infringing song where the plaintiff claimed the latter song was a version of her original), and Gottwald, 2011 WL 4344038, at *5, 2011 U.S. Dist. LEXIS 103414, at *17-18 (dismissing the plaintiffs claim that Kesha’s soiig TikTok infringed the plaintiffs musical composition for the song My Slushy after comparing total look and feel of the two songs), and Jean, 2002 WL 287786, at *5-6 (addressing direct or near direct infringement but at the summary judgment stage). As in Broadus, the alleged infringement in this case involves the literal use of a small portion of the pre-existing work in the later work, which “is analogous to a direct quotation or close paraphrase,” 2001 WL 984714, at *3, rather than the “parroting [of] properties that are apparent only when numerous aesthetic decisions embodied in the plaintiffs work of art ... are considered in relation to one another.” Peter F. Gaito, 602 F.3d at 66 (quoting Tufenkian Imp./ Exp. Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 133 (2d Cir.2003)). Unlike this latter type of copying, in cases of fragmented literal similarity, there are no blurred lines between what was or was not taken. Accordingly, here, as in Broadus, the Court concludes that “th[e] copying is an example of ‘fragmented literal similarity,’ ” and will conduct the substantial similarity inquiry accordingly. 2001 WL 984714, at *3 (quoting Castle Rock, 150 F.3d at 140). Having determined that this case is best viewed as one involving “fragmented literal similarity,” the question of substantial similarity is determined by an analysis of “whether the copying goes to trivial or substantial elements” of the original work. Newton 388 F.3d at 1195; Broadus, 2001 WL 984714, at *3. As when addressing substantial similarity in any respect, the question of “[substantiality is" }, { "docid": "20699550", "title": "", "text": "work,- that alone (depending on the facts) may be enough to create substantial similarity between the two pieces. However, a court applying the “more discerning observer” test may not simply “dissect the works at issue into separate components and compare only the copyrightable elements.” Id, This would narrow copyright too much, and render protection for the selection and arrangement of public domain elements a dead letter. Id. When applying the “more discerning observer” test, the Court must make sure to engage in a holistic comparison of the two works, looking for substantial similarity that is apparent “only when numerous aesthetic decisions embodied in the plaintiffs work of art—the excerpting, modifying, and arranging of [unprotectible components] ...—are considered in relation to one another.” Peter F. Gaito, 602 F.3d at 66 (alterations in original) (quoting Tufenkian, 338 F.3d at 134). Only then can the Court determine whether any similarities “are due to protected aesthetic expressions original to the allegedly infringed work, or whether the similarity is to something in the original that is free for the taking.” Tufenkian, 338 F.3d at 134. B. Analysis As explained above, the Court can evaluate issues of substantial similarity at the motion to dismiss stage by reviewing the complaint and the works at issue in the case. See Peter F. Gaito, 602 F.3d at 64; Edwards, 22 F.Supp.3d at 298; TufAmerica, 968 F.Supp.2d at 595; Pyatt, 2011 WL 2078531, at *5. If the Court determines (1) that any similarity between the two works concerns only non-copyrightable parts of Plaintiffs song, or (2) that no reasonable jury properly instructed could find substantial similarity on the facts of this case, then the two songs are not substantially similar as a matter of law. Under such circumstances, Plaintiff will have failed to plausibly allege infringement of his copy-l-ight, and the Court must dismiss his claim. Plaintiff alleges that Defendants’ song “Made in America” is an unlawful copy of his own song by the same name. Plaintiff points to a variety of specific musical and lyrical features in Defendants’ song that he claims were lifted directly from his music. He" }, { "docid": "23229270", "title": "", "text": "Knitwaves, Inc., 71 F.3d at 1002 (emphasis omitted). No matter which test we apply, however, we have disavowed any notion that “we are required to dissect [the works] into them separate components, and compare only those elements which are in themselves copyrightable.” Id. at 1003; see Boisson, 273 F.3d at 272-73. Instead, we are principally guided “by comparing the contested design’s ‘total concept and overall feel’ with that of the allegedly infringed work,” Tufenkian Import/Export Ventures, Inc. v. Einstein Moomjy, Inc., 338 F.3d 127, 133 (2d Cir.2003); see Boisson, 273 F.3d at 272; Knitwaves Inc., 71 F.3d at 1003, as instructed by our “good eyes and common sense,” Hamil Am., 193 F.3d at 102 (alteration omitted). This is so because “the defendant may infringe on the plaintiffs work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when numerous aesthetic decisions embodied in the plaintiffs work of art — the excerpting, modifying, and arranging of [unprotectible components] ... — are considered in relation to one another.” Tufenkian Import/Export Ventures, Inc., 338 F.3d at 134. Thus, in the end, our inquiry necessarily focuses on whether the alleged infringer has misappropriated “the original way in which the author has ‘selected, coordinated, and arranged’ the elements of his or her work.” Knitwaves Inc., 71 F.3d at 1004 (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 358, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991)). A de novo application of these principles to the works in question here unequivocally demonstrates the utter lack of similarity between the two designs. Plaintiffs’ overall design for the Church Street Project, for instance, consists of not one, but three prominent structures: a 34-story residential tower, a structure containing “proposed retail with residential duplex units above,” and an “8-story mixed-use building,” all oriented along Church and Division Streets in downtown New Rochelle. Defendants’ re-design, by contrast, consists of a single structure comprised of a 42-story residential tower, two-story retail spaces facing Main Street, retail space adjacent to the tower to be occupied by two large retail" } ]

[ { "docid": "23656454", "title": "", "text": "was not prejudicial and, therefore, does not establish constitutionally ineffective assistance of counsel. Moreover, Cross’s inability to show a Strickland violation undermines his assertion that he had cause for failing to raise his Faretta claim on direct appeal. Appellant’s remaining claims do not satisfy the cause and prejudice prerequisites for this court’s review of their merits. Even assuming that ineffective assistance of counsel on direct appeal satisfied the cause prong with respect to these claims, any error created certainly did not yield actual prejudice. See e.g., Frady, 456 U.S. at 168, 102 S.Ct. at 1594 (declining to address cause prong because of confidence that there was no actual prejudice). In Frady, the Supreme Court defined prejudicial error as that which in the context of the entire trial so infused the proceeding that the resulting conviction violates due process. 456 U.S. at 169, 102 S.Ct. at 1595; see Lilly, 792 F.2d at 1544; Keel v. United States, 585 F.2d 110, 113 (5th Cir.1978) (en banc). The petitioner must show that the errors at trial “worked to his actual and substantial disadvantage, infecting his entire trial with error of constitutional dimensions.” Frady, 456 U.S. at 170, 102 S.Ct. at 1596. None of appellant’s claims approaches this standard. Because the allegations raised in the appellant’s motion are insufficient to establish a claim for relief under section 2255, the district court did not err in denying the motion without a hearing. The judgment of the district court is, therefore, AFFIRMED. . On direct appeal, Cross raised two issues relating to the alleged discriminatory selection of grand jury foremen in the Middle District of Georgia. The Eleventh Circuit's reversal of his conviction on this ground was vacated and remanded by the Supreme Court for reconsideration in light of Hobby v. United States, 468 U.S. 339, 104 S.Ct. 3093, 82 L.Ed.2d 260 (1984). Subsequently, this court vacated its former judgment and affirmed the conviction. United States v. Cross, 742 F.2d 1279 (11th Cir.1984). Appellant then filed the present motion to vacate pursuant to 28 U.S.C. § 2255 raising thirteen claims of error. While the motion was" } ]

[ { "docid": "916397", "title": "", "text": "sonable probability that the result of the Motion for New Trial or the direct appeal would have been different.” (Doc. 16-23 at 18). The question is whether this ruling is contrary to Strickland, or unreasonable either legally or factually. To answer this question, this Court, like the state courts, must analyze trial coun sel’s actions. This effectively means that the procedural default of most of Butts’s ineffective assistance of trial counsel claims has little practical effect on this Court’s analysis. It is necessary to review these ineffective assistance of trial counsel claims because they are central to (1) Butts’s claim that appellate counsel were ineffective when they failed to raise .trial counsel’s ineffectiveness and (2) his argument that he has established cause and prejudice necessary to entitle him to judicial review of these procedurally defaulted claims. When a petitioner alleges that appellate counsel were ineffective for failing to raise ineffectiveness of trial counsel claims, the Eleventh Circuit has recognized that, “the state court could not effectively review appellate counsel’s performance in challenging trial counsel’s effectiveness in mitigation without re-examining trial counsel’s performance as well.” Ferrell v. Hall, 640 F.3d 1199, 1224-25 (11th Cir. 2011); DeYoung v. Schofield, 609 F.3d 1260, 1283 n.22 (11th Cir. 2010) (reasoning that “[rjather than wade through [the] complexities” of whether ineffective assistance of appellate counsel excused procedural default of trial counsel ineffectiveness claims, the court would “discuss the merits of [petitioner’s] trial counsel claims, as that alone resolves the case”). In other words, whether appellate counsel failed to properly challenge trial counsel’s mitigation inquiry focuses on essentially the same corpus of evidence and the same legal questions underlying trial counsel’s effectiveness — which strategies did trial counsel pursue, were those strategies reasonable under the circumstances, and what kinds of penalty phase evidence was developed, or could reasonably have been developed. Ferrell, 640 F.3d at 1225. The state habeas court recognized this and explained that, although Butts’s “ineffective assistance of trial counsel claims ' are procedurally barred or procedurally defaulted, the [c]ourt considers the conduct of trial counsel as part of its analysis of [Butts’s] ineffective" }, { "docid": "23282457", "title": "", "text": "(involving Sentencing Guidelines); United States v. Holmes, 838 F.2d 1175 (11th Cir.), cert. denied, 486 U.S. 1058, 108 S.Ct. 2829, 100 L.Ed.2d 930 (1988) (involving Comprehensive Drug Abuse Prevention and Control Act). The provision at issue in section 924(c) cannot be distinguished from those challenged in the Eleventh Circuit cases cited above to justify disregard for established precedent. Appellants also argue that the facts of this case are inapposite to those of Good-face, Erves, and Holmes. Appellants contend that Goodface, for example, should be read to hold only that the particular defendant in that case did not prove that individualized sentencing was a constitutional imperative in his situation. Similarly, appellants attempt to distinguish Erves because that case challenged the constitutionality of the Sentencing Guidelines, not the constitutionality of a specific mandatory sentence. These arguments are unpersuasive. Accordingly, appellants’ constitutional challenges are rejected. 3. Ineffective Assistance Of Counsel In this circuit, “a claim of ineffective assistance of counsel may not be raised on direct appeal where the claim has not been heard by the district court nor a factual record developed.” United States v. Khoury, 901 F.2d 948, 969 (11th Cir.1990). This rule is generally used to prohibit direct appeals of such claims, because they are more properly raised by way of collateral attack in the district court. United States v. Arango, 853 F.2d 818, 823 (11th Cir.1988). However, the instant case is somewhat unusual because the district court recognized that Jones might have a claim for ineffective assistance as a result of his trial counsel’s failure to provide proper notice of alibi to the government. The trial judge discussed the issue with counsel and with appellant Jones, and the transcript of that conversation provides us with an adequate record for purposes of review. To succeed on his claim of ineffective assistance of counsel, appellant Jones must satisfy the two-pronged test of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland test requires: (1) a showing that counsel’s performance was deficient, measured against a standard of “reasonably effective assistance,” and (2) a showing that the" }, { "docid": "1976933", "title": "", "text": "2546), the claim cannot be heard in federal habeas. Attorney error that amounts to ineffective assistance of counsel can constitute “cause” under the cause and prejudice test. See Gravley v. Mills, 87 F.3d 779, 785 (6th Cir.1996). In order to constitute sufficient cause to overcome the procedural default, a counsel’s performance, must be constitutionally deficient. Id. at 785. However, “the mere fact that counsel failed to recognize the factual or legal basis for a claim, or failed to raise the claim despite recognizing it, does not constitute cause for a procedural -default.” Murray v. Carrier, 477 U.S. 478, 486, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986). The Sixth Circuit has held that an Ohio court’s denial on procedural grounds of a claim of ineffective assistance of appellate counsel precludes a petitioner from raising the claim as an independent habeas claim in his federal habeas petition. Carpenter v. Mohr, 163 F.3d 938, 945 (6th Cir.1998), cert. granted sub nom, Edwards v. Carpenter, - U.S. -, 120 S.Ct. 444, 145 L.Ed.2d 362 (Nov. 8, 1999). As the Court discussed supra, the courts sometimes “forgive” this type of procedural default of an ineffective assistance claim by a habeas petitioner when he or she was represented by the same counsel at trial and on direct appeal, on the theory that it is unrealistic that trial counsel can effectively argue his or her own “ineffectiveness” on appeal. See, e.g., Mapes v. Coyle, 171 F.3d 408, 421 (6th Cir.1999) (“The only exception to [the] rule [that all assignments of error that were or could have been raised on direct appeal may not be considered in a post-conviction proceeding] occurs when ineffective assistance of counsel is alleged and the petitioner had the same counsel during trial and on direct appeal. Even in its broadest form, this exception encompasses only those claims for which evidence is not contained in the trial record. See State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, 171 (1982).”). Thus, except for those federal habeas cases arising in Ohio in which the Cole modification to Perry applies, if the petitioner cannot show" }, { "docid": "20855411", "title": "", "text": "risk; We encourage counsel to discuss that subject with the defendant after argument and to consider withdrawing the contention. We asked that question at oral argument of this appeal, and counsel assured us that Flores is aware of the risks and wants the contention resolved now. That is his prerogative, foolish though the choice seems to the judiciary. United States v. Flores, 739 F.3d 337, 341-42 (7th Cir.2014). See also, e.g., United States v. Moody, 770 F.3d 577, 582 (7th Cir.2014) (ineffective assistance claim “should be pursued in a collateral proceeding under 28 U.S.C. § 2255”); United States v. Bryant, 754 F.3d 443, 444 (7th Cir.2014) (“[a] claim of ineffective assistance need not, and usually as a matter of prudence should not, be raised in a direct appeal, where evidence bearing on the claim cannot be presented and the claim is therefore likely to fail even' if meritorious”); United States v. Harris, 394 F.3d 543, 558 (7th Cir.2005) (“only the rarest and most patently egregious of ineffective assistance claims are appropriately brought on direct appeal”); United States v. Trevino, 60 F.3d 333, 338 (7th Cir.1995) (“we have often cautioned that a defendant who presents an ineffective assistance claim for the first time on direct appeal has little to gain and everything to lose”). Because the federal courts have no established procedure (such as the one Wisconsin uses, for instance) to develop ineffective assistance claims for direct appeal, the situation of a federal petitioner is the same as the one the Court described in Trevino: as a practical matter, the first opportunity to present a claim of ineffective assistance of trial or direct appellate counsel is almost always on collateral review, in a motion under section 2255. There may be rare exceptions, as Massaro acknowledged, for a case in which trial counsel’s ineffectiveness “is so apparent from the record” that it can be raised on direct appeal or even noticed by the appellate court on its own. 538 U.S. at 508-09, 123 S.Ct. 1690. But Ramirez’s is not one of them. Even if this is so, the government argues, we should" }, { "docid": "9935761", "title": "", "text": "the Court concluded that the state court’s finding of procedural default was “utterly unrealistic.” Id. The Supreme Court’s interpretation of the Michel test in Reece makes clear that where the application of a state procedural rule operates to frustrate the exercise of a federal constitutional right, federal courts may reach the merits of the underlying federal claim. C. Idaho Code § 19-2719 Frustrated the Exercise of Hoffman’s Sixth Amendment Claims The unique difficulties involved in arguing claims of ineffective assistance of counsel have led federal habeas courts to find “inadequate” a state procedural bar that denies a petitioner “any meaningful review of his ineffective assistance claim.” Brecheen v. Reynolds, 41 F.3d 1343, 1364 (10th Cir.1994). Indeed, three federal circuit courts have held that where a criminal defendant does not comply with the procedural requirement that his ineffective assistance of counsel claims be raised on direct appeal, he has not, in most circumstances, waived his right to have a federal court review those claims on the merits. In English v. Cody, the Tenth Circuit held that a criminal defendant must be able to obtain an objective assessment of trial counsel’s performance and be allowed to develop adequately the factual basis of any ineffective assistance of counsel claim. Considering an Oklahoma statute requiring criminal defendants to raise all ineffective assistance of counsel claims on direct review, the court concluded that the state law would not bar federal review on the grounds of procedural default unless: (1) the defendant was appointed separate counsel on appeal; and (2) the claim could be resolved on the basis of the trial record alone. The opinion noted that, unless one of the narrow exceptions applied, there is a “constitutional imperative that this court disregard a state procedural bar for the review of ineffective assistance [of counsel] claims.” English, 146 F.3d at 1261. The Second and Seventh Circuits have reached the same conclusion. See Guinan v. United States, 6 F.3d 468, 471-73 (7th Cir.1993) (holding that ineffective assistance of counsel claims not raised on direct appeal were not waived if the defendant continued to be represented by trial" }, { "docid": "16473021", "title": "", "text": "such an allegation. See, e.g., United States v. Williams, 612 F.3d 500, 508 (6th Cir.2010). The Ohio courts, by contrast, allow an ineffective assistance of counsel claim to be raised on direct appeal, and in fact, encourage it, because they apply the res judicata doctrine to Strickland claims, just as they would to any other, despite the comparative evidentiary limitations concomitant on direct appeal. See, e.g., State v. Cole, 2 Ohio St.3d 112, 443 N.E.2d 169, 170 (1982) (syllabus). Nevertheless, Ohio has recognized two narrow exceptions which circumvent res judicata’s application and provide a petitioner with the opportunity to raise a Strickland claim for the first time on post-conviction review. Only one exception is relevant here. Pursuant to Ohio law, a petitioner may avoid res judicata’s bar if he can show that a “fair determination” of the ineffective assistance of counsel claim requires reference to evidence that was “outside the record” on direct appeal. See id. Because Ohio law prohibits the addition of new evidence to the trial record on direct appeal, State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500, 502 (1978), the state has excepted from res judicata those matters that may only be reasonably determined by reference to evidence that would necessarily fall outside the trial record — for instance, whether trial counsel sufficiently prepared in advance of trial or whether the defense had strategic motivations for its decisions. See State v. Smith, 17 Ohio St.3d 98, 477 N.E.2d 1128, 1131 n. 1 (1985). Although the outside-the-record exception provides a narrow escape from procedural default, the state’s res judicata doctrine presents an Ohio defendant with somewhat of a procedural quandary — either he must raise his ineffective assistance of counsel claim immediately on direct appeal and risk a potentially premature dispositive denial, or he must forego his claim on direct appeal and simply hope that he can thereafter develop sufficient outside-the-record evidence to overcome res judicata on collateral review. Applying Ohio’s procedures here, Petitioner clearly failed to raise a voir dire-based ineffectiveness claim on direct appeal, and his claim was therefore procedurally defaulted on collateral review." }, { "docid": "2243804", "title": "", "text": "recently has made clear that when a state court denies collateral review on the ground that the claim was already decided on direct appeal, that state ruling does not bar federal review: When a state court declines to review the merits of a petitioner’s claim on the ground that it has done so already, it creates no bar to federal habeas review .... When a state court refuses to readjudicate a claim on the ground that it has been previously determined, the court’s decision does not indicate that the claim has been procedurally defaulted. To the contrary, it provides strong evidence that the claim has already been given full consideration by the state courts and thus is ripe for federal adjudication. A claim is procedurally barred when it has not been fairly presented to the state courts for their initial consideration — not when the claim has been presented more than once. Cone v. Bell, 556 U.S. -, 129 S.Ct. 1769, 1780-82, 173 L.Ed.2d 701 (2009) (citation omitted); accord LeCroy v. Sec’y, Fla. Dep’t of Corr., 421 F.3d 1237, 1260 (11th Cir.2005) (discussing claim held procedurally barred on state collateral review because “it either was or could have been raised on direct appeal,” and stating that if claim “was raised on direct appeal in state court, it was necessarily ruled upon and might very well be foreclosed from state collateral attack, but it would be available in the federal case as an exhausted claim” (quotation marks and brackets omitted)); Smith v. Dugger, 840 F.2d 787, 791 (11th Cir.1988) (same). In sum, Owen’s claims of ineffective trial and appellate counsel as to his confession, and ineffective appellate counsel as to the sexual-battery jury charge, are not barred from federal habeas review. Moreover, as shown below, the underlying substantive claims on those issues lack merit. Thus, any deficiencies of counsel in failing to raise or adequately pursue them cannot constitute ineffective assistance of counsel. See Shere v. Sec’y, Fla. Dep’t of Corr., 537 F.3d 1304, 1311 (11th Cir.2008) (agreeing that “appellate counsel is not ineffective for failing to raise a meritless issue" }, { "docid": "23535247", "title": "", "text": "there usually has been insufficient opportunity to develop the record regarding the merits of these claims. United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 3007, 120 L.Ed.2d 882, and cert. denied, — U.S. -, 112 S.Ct. 3008, 120 L.Ed.2d 882, and cert. denied, — U.S. -, 112 S.Ct. 3048, 120 L.Ed.2d 915 (1992). We will, however, consider an ineffective assistance of counsel claim on direct appeal if the record is sufficiently developed. Id. Because there is insufficient evidence in the record regarding the claims based on jury selection and defense counsel objections, we will not address those claims. Such claims may be resolved in a 28 U.S.C. § 2255 proceeding, where an evidentiary hearing may be held. Andrews, 953 F.2d at 1327. However, the district court’s evidentiary hearing on Camacho’s claim that Caridad refused to allow him to testify provides this court with sufficient development of the record to review this claim. The defendant in a criminal ease has a fundamental constitutional right to testify in his own behalf at trial. United States v. Teague, 953 F.2d 1525, 1532 (11th Cir.), cert. denied, — U.S. -, 113 S.Ct. 127, 121 L.Ed.2d 82 (1992). This right cannot be waived by defense counsel. Id. Because defense counsel is primarily responsible for advising the defendant of his right to testify, thereby ensuring the protection of that right, the appropriate vehicle for claims alleging that defense counsel violated the defendant’s right to testify is a claim of ineffective assistance of counsel. Id. at 1534. In the instant ease, the district court made specific findings of fact after an evidentiary hearing on the issue. Specifically, after hearing four witnesses testify, the court found the testimony of Camacho’s trial counsel, Miguel Caridad, to be most credible. Caridad testified that he had advised Camacho not to testify, but had made it clear to Camacho that the final decision about whether to testify was Camacho’s. Caridad also testified that Camacho had actually made the final decision not to testify. After reviewing the record, we hold that these findings are" }, { "docid": "17202067", "title": "", "text": "record provided a sufficient basis for the ineffective assistance claim on trial counsel’s failure to object to a jury charge, that such a claim did not fall within any of the exceptions noted by the New York courts. Reyes v. Keane, 118 F.3d 136, 139 (2d Cir.1997). More recently, in reviewing a habeas petition claiming ineffective assistance for failing to object on double jeopardy grounds, we again ruled that § 440.10(2)(c) barred such a collateral attack when the defendant unjustifiably faded to raise the ineffective assistance issue on direct appeal. Aparicio, 269 F.3d at 91. Thus we conclude that Sweet’s appellate counsel unjustifiably failed to argue this ineffective assistance claim on direct appeal despite a sufficient record, and consequently waived the claim under § 440.10(2)(c). Accordingly, Sweet’s claim is procedurally defaulted for the purposes of federal habeas review as well. B. The Supreme Court’s Recent Decision in Massaro v. United States Does Not Change This Result We note that there is nothing in Massaro v. United States, 538 U.S. 500, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), that disturbs this conclusion. In Massaro, the appellant challenged the validity of this Court’s decision in Billy-Eko v. United States, 8 F.3d 111 (2d Cir.1993), where we held that when a habeas petitioner pursuant to § 2255 is represented by new counsel on appeal and the ineffective assistance claim is based solely on the record made at trial, the claim must be made on direct appeal; otherwise, the defendant has procedurally defaulted the claim. The Supreme Court abrogated this rule and held that in § 2255 petitions there is no procedural default for failure to raise an ineffective assistance claim on direct appeal. Massaro, 123 S.Ct. at 1694-95. However, Massaro is not a constitutional decision, and by its own language it did not extend its rule beyond § 2255. See, e.g., id. at 1696 (“We do hold that failure to raise an ineffective assistance-of-eounsel claim on direct appeal does not bar the claim from being brought in a later, appropriate proceeding under § 2255.” (emphasis added)). Section 2254, unlike § 2255, contains an" }, { "docid": "22273772", "title": "", "text": "have been fully and completely addressed on direct review based on the factual record created at the plea colloquy. Id. at 1610-11. For the same reasons, this exception does not apply here. . We note, however, that in general an ineffective assistance claim which was not raised on direct appeal is not deemed procedurally defaulted for purposes of habeas review. United States v. De Rewal, 10 F.3d 100, 103 (3d Cir.1993). The rule is rooted in the recognition that, as in this case, trial counsel is often the same attorney on the defendant's direct appeal, and therefore it would be unrealistic to expect or require that attorney to attack his or her own performance on direct review. In addition, because resolution of ineffective assistance claims often requires consideration of factual matters outside the record on direct appeal, a defendant need not show cause and prejudice for failing to raise a claim of ineffective assistance on direct review. Id. Accordingly, such a claim is properly raised for the first time in the district court under § 2255. Id. . Here, the District Court also erroneously restricted its analysis on collateral review because Garth pled guilty rather than proceeding to trial. See, e.g., Bousley, supra; see also Lee v. United States, 113 F.3d 73, 76 (7th Cir.1997) (fact that § 924(c) conviction arose from plea rather than trial verdict makes no difference in terms of Bailey analysis); United States v. Barron, 172 F.3d 1153, 1158 (9th Cir.1999) (a collateral challenge to conviction based upon a claim of innocence is not a repudiation of the plea agreement). . In stating that the record requires a remand to allow Garth to establish his actual innocence, we do not mean to suggest that Garth must come forward with evidence before the District Court. He may rest on the record as it now stands and thus require the prosecution to present additional \"admissible evidence\" of his factual guilt. See Bousley, 118 S.Ct. at 1612. . For example, the January 7, 1992 Judgment describes Count 2 as \"Use of a firearm during drug trafficking crime.” Similarly, during" }, { "docid": "14408334", "title": "", "text": "and either the defendant’s ineffective-trial-counsel claim could be resolved solely on the trial record before the direct-appeal court or the defendant could have expanded the direct-appeal record to present his ineffective-assistance claim adequately. See English v. Cody, 146 F.3d 1257, 1263, 1264-65 (10th Cir.1998); Hooks, 184 F.3d at 1214-15, 1216-17; see also, e.g., James, 211 F.3d at 556. Powell was represented on appeal by a different attorney, and the State asserts that, in fact, Powell could have adequately expanded and developed the direct-appeal record sufficiently to permit him to raise these ineffective-trial-counsel claims on direct appeal. Cf. Romano, 239 F.3d at 1180 (holding that the same procedural-bar rule was inadequate without addressing whether the petitioner could have adequately expanded the direct-appeal record). While we are mindful that the State bears the ultimate burden of proving that its procedural mechanism was adequate, the habeas petitioner must also allege with specificity why the state procedural rules were inadequate to have permitted him to raise the omitted claim on direct appeal. See Smallwood, 191 F.3d at 1268; Hooks, 184 F.3d at 1216-17. However, because Powell does not address his alleged procedural default, let alone challenge the adequacy of Oklahoma’s procedural rules, we conclude that Oklahoma’s procedural bar is adequate to preclude our habeas review of these particular ineffective-trial-representation claims. Furthermore, Powell fails to allege either cause excusing this default and prejudice, or that this court’s refusal to consider the defaulted claims will result in a fundamental miscarriage of justice. See, e.g., Coleman v. Thompson, 501 U.S. 722, 750, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991). We therefore decline to address the merits of these barred claims. See, e.g., Cannon v. Gibson, 259 F.3d 1253, 1265-66 (10th Cir.2001) (declining to review procedurally defaulted habeas claim, even though the district court had addressed the merits of the claim), cert. denied, 535 U.S. 1080, 122 S.Ct. 1966, 152 L.Ed.2d 1026 (2002). Even were we to address the merits of Powell’s defaulted claims, we are confident they do not warrant habeas relief. 7. Spears’ Procedurally Defaulted Ineffective-Trial-Counsel Claims In his § 2254 petition, Spears asserted for the" }, { "docid": "23535246", "title": "", "text": "Munoz-Realpe, 21 F.3d at 377 n. 5. Our decision today is not contrary to Munoz-Realpe. In the instant ease, the sentence imposed by the district court was consistent with Rodriguez. Unlike the defendant in Munoz-Realpe, Camacho need not be resentenced. Therefore, the holding in Munoz-Realpe, requiring that effective guideline amendments be applied at resentencing, is inapplicable to the instant case. We find no error in the imposition of sentence in this case. B. Ineffective Assistance of Counsel Camacho raises three grounds for his ineffective assistance of counsel claim: (1) Defense counsel refused to allow Camacho to be consulted regarding the selection of jurors; (2) Defense counsel failed to make objections at critical times during the trial; and (3) Defense counsel refused to allow Camacho to exercise his right to testify. Camacho initially raised these claims in a post-trial motion. However, the district court only held an evidentiary hearing on the issue of defense counsel’s refusal to allow Camacho to testify. Generally, we do not consider claims of ineffective assistance of counsel on direct appeal, because there usually has been insufficient opportunity to develop the record regarding the merits of these claims. United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir.), cert. denied, — U.S. -, 112 S.Ct. 3007, 120 L.Ed.2d 882, and cert. denied, — U.S. -, 112 S.Ct. 3008, 120 L.Ed.2d 882, and cert. denied, — U.S. -, 112 S.Ct. 3048, 120 L.Ed.2d 915 (1992). We will, however, consider an ineffective assistance of counsel claim on direct appeal if the record is sufficiently developed. Id. Because there is insufficient evidence in the record regarding the claims based on jury selection and defense counsel objections, we will not address those claims. Such claims may be resolved in a 28 U.S.C. § 2255 proceeding, where an evidentiary hearing may be held. Andrews, 953 F.2d at 1327. However, the district court’s evidentiary hearing on Camacho’s claim that Caridad refused to allow him to testify provides this court with sufficient development of the record to review this claim. The defendant in a criminal ease has a fundamental constitutional right to testify in" }, { "docid": "7781985", "title": "", "text": "“[t]here are ‘rare cases where the record is sufficiently complete’ ” to facilitate effective review of ineffectiveness claims on direct appeal, id. at 807 (quoting United States v. Ugalde, 861 F.2d 802, 804 (5th Cir.1988), cert. denied, 490 U.S. 1097, 109 S.Ct. 2447, 104 L.Ed.2d 1002 (1989)), we also recognized that “most circuits follow the general rule that ‘a claim of ineffective assistance of counsel cannot be resolved on direct appeal when the claim has not been raised before the district court.’ ” Id. (quoting United States v. Lewis, 902 F.2d 1176, 1180 (5th Cir.1990) and citing United States v. Castro, 908 F.2d 85, 89 (6th Cir.1990); United States v. Khoury, 901 F.2d 948, 969 (11th Cir.), modified, 910 F.2d 713 (11th Cir.1990); United States v. Davis, 882 F.2d 1334, 1345 n. 14 (8th Cir.1989), cert. denied, 494 U.S. 1027, 110 S.Ct. 1472, 108 L.Ed.2d 610 (1990); United States v. Hayos-Medina, 878 F.2d 21, 22 (1st Cir.1989); United States v. Schreiber, 599 F.2d 534, 538 (3d Cir.), cert. denied, 444 U.S. 843, 100 S.Ct. 86, 62 L.Ed.2d 56 (1979)). Based on our reasoning in Beau-lieu, we adopt the general rule followed in most other circuits that ineffective assistance of counsel claims cannot be resolved on direct appeal when the claim has not been raised in the district court. Kay’s ineffective assistance claim may in fact have merit; however, because the claim was not raised before the district court, we simply have no factual basis in the record upon which to determine whether and on what grounds defense counsel should have contested the firearm enhancement. “The preferred avenue for challenging the effectiveness of defense counsel in a federal criminal trial is by collateral attack under 28 U.S.C. § 2255.” Beaulieu, 930 F.2d at 806. Therefore, we decline to address Kay’s ineffective assistance claim on this direct appeal. However, we do so without prejudice to Kay's right to raise the issue in proceedings properly brought under 28 U.S.C. § 2255. AFFIRMED. . After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the" }, { "docid": "8184540", "title": "", "text": "attack as opposed to direct appeal because of the necessity to develop a factual basis for its validity through a hearing), with United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir.) (claims of ineffective assistance may be considered on direct appeal where there is sufficient evidence on the record to resolve the issue), cert. denied, — U.S. -, -, 112 S.Ct. 3008, 3048, 120 L.Ed.2d 882, 915 (1992). When a defendant fails to pursue an available claim on direct appeal, it will not be considered in a motion for § 2255 relief unless he can establish cause for the default and actual prejudice resulting from the alleged error. Cross v. United States, 893 F.2d 1287, 1289 (11th Cir.), cert. denied, 498 U.S. 849, 111 S.Ct. 138, 112 L.Ed.2d 105 (1990). Alternatively, under the fundamental miscarriage of justice exception, “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, 2649, 91 L.Ed.2d 397, 413 (1986). On the other hand, prior disposition of a ground of error on direct appeal, in most eases, precludes further review in a subsequent collateral proceeding. See United States v. Hobson, 825 F.2d 364, 366 (11th Cir.1987), vacated on other grounds, 492 U.S. 913, 109 S.Ct. 3233, 106 L.Ed.2d 581 (1989). The appellants’ first ground for relief, that Congress unconstitutionally delegated its duty to define “waters of the United States” to the Corps, should have been asserted on direct appeal. The district court correctly concluded nevertheless that, if this delegation of authority rendered the statute void, the appellants’ procedural default could be excused under the fundamental miscarriage of justice exception because a defendant is actually innocent of a crime where the underlying statute is without force or effect. See Gonzalez v. Abbott, 967 F.2d 1499, 1504 (11th Cir.1992). We also agree with the district court, however, that this constitutional argument lacks merit. In Riverside Bayview" }, { "docid": "2124030", "title": "", "text": "in a federal habeas proceeding.” 132 S.Ct. at 1315. The Court carefully defined “initial review collateral proceeding” to mean state court proceedings that, by operation of state law, “provide the first occasion to raise a claim of ineffective assistance of counsel” because the state “barred the defendant from raising the claim on direct appeal.” Id. at 1315, 1320. The Court concluded that, in that circumstance, inadequate assistance of collateral counsel may constitute cause to excuse the procedural default of an ineffective assistance of trial counsel claim, thus allowing federal courts to look past the default on habeas review and at the merits of the claim. Id. at 1320. But the Court repeatedly emphasized the “limited nature” of its holding, which “ad-dresse[d] only the constitutional claims” present where the state has banned a defendant from raising his ineffective assis tance of trial counsel claim on direct appeal. Id. We respect Martinez’s emphasis that its conclusion was a narrow one and join our sister circuits in refusing to expand it. See, e.g., Ibarra v. Thaler, 687 F.3d 222, 224 (5th Cir.2012); Arnold v. Dormire, 675 F.3d 1082, 1087 (8th Cir.2012); Banks v. Workman, 692 F.3d 1133, 1148 (10th Cir.2012). By its terms, Martinez does not address the type of situation that Moore presents here. Not only does Ohio permit ineffective assistance of trial counsel claims to be made on direct appeal, Moore raised this claim on direct appeal and the Ohio Supreme Court rejected it on the merits. Moore, 689 N.E.2d at 13-14. Second, and relatedly, Moore is not asking that we afford a Martinez-like review of a procedurally defaulted claim, but rather that we turn Martinez into a route to circumvent Pinholster. Moore’s argument is not merely that Martinez permits us to review the merits of his claim; we already do that below, albeit through the lens of AEDPA deference, and Martinez is irrelevant to that analysis. Instead, he argues that we should remand to allow factual development of his allegation that collateral counsel was ineffective, and then, if collateral counsel is found ineffective on that newly developed record, permit that" }, { "docid": "8914354", "title": "", "text": "must show cause why the issue was not raised. However, Galbraith offers no such cause for his procedural default of this issue. The ineffective assistance of counsel claim, discussed infra,- concerns only his trial counsel, and that counsel’s alleged ineffectiveness during the taking of the guilty plea. Galbraith’s attorney on direct appeal in Galbraith I was new counsel, and Galbraith makes no argument that that counsel was ineffective in not raising the deficient guilty plea claim on direct appeal. Therefore, Galbraith’s ■ failure during his direct appeal to raise his claim that the district court did not adequately inform him of the consequences of his guilty plea stands unexplained, and is, therefore, barred from collateral attack by this petition. Next, we must consider whether Galbraith has procedurally defaulted his claim that he had ineffective assistance of counsel before or during the guilty plea hearing. Ineffective counsel claims that are not raised on direct appeal are subject to the same procedural default rules as other issues. Guinan v. United States, 6 F.3d 468, 471 (7th Cir.1993). Despite that, this court has noted that it is generally proper to raise arguments of ineffective assistance of counsel for the first time on collateral review in a § 2256 petition because such claims usually, as here, involve evidence outside the record. McCleese v. United States, 75 F.3d 1174, 1178 (7th Cir.1996). A reviewing court on direct appeal is limited to the record of trial and cannot consider any extrinsic evidence that may be necessary to support the ineffec tive counsel claim. Id.; United States v. Gilliam, 255 F.3d 428, 437 (7th Cir.2001) (noting that limitation to the record on direct appeal “almost invariably dooms” ineffective counsel claims) (quotation omitted). Because Galbraith’s ineffective counsel claim argues that his trial lawyer failed to inform him of the effects of his unconditional plea, an evidentiary matter not in the record, there was no opportunity for adequate review on direct appeal. Consequently, whatever default there may have been is easily overcome, because the evidence that Galbraith alleges to support his petition is extrinsic to the record that was" }, { "docid": "16202103", "title": "", "text": "and prejudice standard where a section 2255 petitioner failed to appeal at all. See Johnson, 838 F.2d at 202; also see id. at 206 (Ripple, J., concurring) (pointing out that despite the Supreme Court's reticence on the issue (prior to Coleman), this circuit applied \"cause and prejudice” standard to a complete failure to appeal a judgment). . We note that Belford has waived a possible argument. Belford included an ineffective assistance of counsel claim not only as his \"cause” for failing to file a direct appeal but also as a substantive claim in his section 2255 motion. Normally, a claim of ineffective assistance of counsel is properly raised on collateral review rather than direct appeal, unless the record is sufficiently developed for the court of appeals to resolve the issue on direct appeal. E.g., United States v. Williams, 934 F.2d 847, 851 (7th Cir.1991). If Belford’s claim of ineffective assistance of counsel at sentencing could not have been raised on direct appeal, Belford need not show cause and prejudice for his procedural default. Belford does not argue, however, that his failure to appeal does not preclude section 2255 review of his ineffective assistance of counsel claim. Belford has therefore waived this argument. Cf. Qualls, 774 F.2d at 851 (although some of petitioner's claims could not have been raised on direct appeal, and his failure to appeal would not preclude section 2255 review, petitioner did not raise this issue and has therefore waived it). .Despite his staunch refusal to engage in a debate on the merits of his claims, Belford does include a section in his brief addressing the merits of his claim that the plea agreement should not have included provisions requiring Belford’s wife and children to relinquish all interest in the stock of Circle Express and requiring Belford’s wife to pay restitution. Bel-ford’s wife and children were not even indicted let alone convicted. Nevertheless, the district court ordered Belford to pay restitution in the manner described in the plea agreement. The appropriateness and indeed the enforceability of this provision in the plea agreement are dubious. At oral argument, the" }, { "docid": "8184539", "title": "", "text": "doctrine. See Mills, 817 F.Supp. at 1549-50. After thoroughly analyzing the Clean Water Act, its legislative history and the context in which the statute was enacted, and in light of the Supreme Court’s decision in United States v. Riverside Bayview Homes, 474 U.S. 121, 106 S.Ct. 455, 88 L.Ed.2d 419 (1985), Judge Vinson found no unconstitutional delegation of legislative power. See id. at 1552-55. He therefore denied relief and this appeal followed. II. DISCUSSION Generally speaking, an available challenge to a criminal conviction or sentence must be advanced on direct appeal or else it will be considered procedurally barred in a § 2255 proceeding. See Greene v. United States, 880 F.2d 1299, 1305 (11th Cir.1989) (and the cases cited therein), cert. denied, 494 U.S. 1018, 110 S.Ct. 1322, 108 L.Ed.2d 498 (1990). A ground of error is usually “available” on direct appeal when its merits can be reviewed without further factual development. Compare United States v. Arango, 853 F.2d 818, 823 (11th Cir.1988) (an allegation of ineffective assistance of counsel must be raised by collateral attack as opposed to direct appeal because of the necessity to develop a factual basis for its validity through a hearing), with United States v. Andrews, 953 F.2d 1312, 1327 (11th Cir.) (claims of ineffective assistance may be considered on direct appeal where there is sufficient evidence on the record to resolve the issue), cert. denied, — U.S. -, -, 112 S.Ct. 3008, 3048, 120 L.Ed.2d 882, 915 (1992). When a defendant fails to pursue an available claim on direct appeal, it will not be considered in a motion for § 2255 relief unless he can establish cause for the default and actual prejudice resulting from the alleged error. Cross v. United States, 893 F.2d 1287, 1289 (11th Cir.), cert. denied, 498 U.S. 849, 111 S.Ct. 138, 112 L.Ed.2d 105 (1990). Alternatively, under the fundamental miscarriage of justice exception, “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" }, { "docid": "5421165", "title": "", "text": "application for delayed appeal in state court, even though the claim was ultimately denied in state court due to a procedural default). We do note that, although our review of the issue has not found a large number of cases directly addressing the issue, the Second and Seventh Circuits have considered the issue in slightly different contexts. See, e.g., Reyes v. Keane, 118 F.3d 136, 139-40 (2d Cir.1997) (habeas petitioner who fails to raise a claim of ineffective assistance of trial counsel in state court may not present that claim as cause for procedurally defaulted habeas claim); Lemons v. O’Sullivan, 54 F.3d 357, 360-61 (7th Cir.1995) (same). Those cases are distinguishable from the present case, for in both cases the petitioner completely failed to raise the ineffective assistance claim in state court. Here, however, Carpenter raised the claim in the primary avenue available to him under Ohio law (application to reopen his direct appeal). Hence, Carpenter provided the state court with the first opportunity to address the claim, although the court declined to do so on a procedural basis. Therefore, we do not decide whether a petitioner’s complete failure to raise an ineffective .assistance claim in the state courts would be insufficient under Murray. Under a broad reading of Murray, we note that it probably would be insufficient, as the Seventh and Second Circuits have held. Therefore, we conclude that the district court erred by finding that before it could consider whether the ineffective assistance of Carpenter’s appellate counsel established cause for the state procedural default of Carpenter’s sufficiency of the evidence claim, it must first determine whether the ineffective assistance of appellate counsel claim was itself procedurally defaulted, rather than simply exhausted. Principles of comity do not require placing a procedural default analysis on claims asserted as cause. We believe that the exhaustion requirement mandated by Murray is sufficient, and ensures that the state court has the first opportunity to hear such claims. Moreover, as noted earlier, a petitioner will be effectively “punished” for procedurally defaulting the ineffective assistance claim by only being able to assert it as cause" }, { "docid": "12870256", "title": "", "text": "issue “was appropriately raised by the ha-beas 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”); see also Bousley, 523 U.S. at 621-22, 118 S.Ct. 1604 (distinguishing between claim that a guilty plea had been coerced by threats made by government agent, which “falls within an exception to the procedural default rule for claims that could not be presented without further factual development,” and a claim that the plea colloquy was erroneous, which “can be fully and completely addressed on direct review based on the record created at the plea colloquy”). Nor could Vinyard have challenged the May 20, 2009 denial of his motion to withdraw his plea: our mandate clearly ordered entry of judgment on the original sentence, leaving the district court no room to grant Vin-yard’s motion. So the record showed no non-friv'olous grounds to attack Vinyard’s guilty plea on direct appeal. Attorney Gross’s advice to proceed instead with a collateral attack was not legally erroneous or constitutionally ineffective. In fact, if he had advised Vinyard to pursue a direct appeal of his plea, that advice would have raised a serious constitutional concern in its own right. To raise a claim on direct appeal in spite of an inadequate record would have been fruitless but also might well have resulted in procedural default because issues “raised on direct appeal may not be reconsidered on a § 2255 motion absent changed circumstances.” Varela v. United States, 481 F.3d 932, 935 (7th Cir.2007). To illustrate this danger, consider the context of the most common sorts of claims for ineffective assistance of counsel. Like Vinyard’s challenge to his plea, such claims generally depend on information outside the record available on direct appeal. The Supreme Court has definitively held that ineffective-assistance claims need not be presented on direct appeal to preserve them for collateral attack under § 2255, Massaro v. United States, 538 U.S. 500, 504, 123 S.Ct. 1690, 155 L.Ed.2d 714 (2003), because ineffective-assistance claims nearly always require more extensive and targeted factual development than" } ]

[ { "docid": "7515008", "title": "", "text": "of right defense to charges of extortion under the Hobbs Act. See United States v. Agnes, 753 F.2d 293, 298 (3d Cir.1985). Despite its broad language, most federal appellate courts, including this court, have restricted Enmons and its claim of right defense to the labor context, fearing that a broader application “could effectively repeal the Hobbs Act.” United States v. Cerilli, 603 F.2d 415, 419 (3d Cir.1979), cert. denied, 444 U.S. 1043, 100 S.Ct. 728, 62 L.Ed.2d 728 (1980); accord United States v. Zappola, 677 F.2d 264, 269 (2d Cir.), cert. denied sub nom. Melli v. United States, 459 U.S. 866, 103 S.Ct. 145, 74 L.Ed.2d 122 (1982); United States v. Porcaro, 648 F.2d 753, 760 (1st Cir.1981); United States v. French, 628 F.2d 1069, 1075 (8th Cir.), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980). Although it may be appropriate not to recognize a claim of right defense in extortion cases based on the wrongful use of force or violence, different considerations apply in the context of extortion based on economic fear. Whereas the use of actual or threatened force or violence to obtain property is inherently wrongful, see Enmons, 410 U.S. at 399-400, 93 S.Ct. at 1009-10, there is nothing inherently wrongful about the use of economic fear to obtain property, see United States v. Kattar, 840 F.2d 118, 123 (1st Cir.1988); United States v. Clemente, 640 F.2d 1069, 1077 (2d Cir.), cert. denied, 454 U.S. 820, 102 S.Ct. 102, 70 L.Ed.2d 91 (1981). We pointed out in Kat-tar that this conclusion does not imply that all forms of economic fear are inherently legitimate. See Kattar, 840 F.2d at 124 n. 3. Although we are not aware of any cases so holding, we do not rule out the possibility that the use of wrongful economic threats to obtain property to which the defendant is legally entitled may be prosecutable as extortion under the Hobbs Act. The point of the preceding discussion is that unlike extortion cases based on the use of force and violence, extortion cases based on the use of economic fear typically" } ]

[ { "docid": "22221065", "title": "", "text": "requirement for Hobbs Act extortion. Compare, e.g., Aguon, 851 F.2d at 1168; United States v. Kattar, 840 F.2d 118, 124 n. 4 (1st Cir.1988); United States v. Dozier, 672 F.2d 531, 542 (5th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982); United States v. Scacchetti, 668 F.2d 643, 649 (2d Cir.), cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1982); cf. Sturm, 870 F.2d at 775 (rejecting “purely objective” definitions which contained “no reference to the defendant’s state of mind”). Furthermore, the charge as a whole made it plain that the definitions applied across the board. There was no error. Appellants also denigrate the instruction on “under color” extortion from another standpoint. The charge suggested, appellants say, that a conviction could be based on a defendant’s knowledge that the victim was motivated by the public office held rather than by some misuse of that office. But, this hairsplitting incorrectly shifts the mens rea focus to fine— and wholly needless—distinctions concerning what a defendant might think that a payor might be thinking. In extortion, “[t]he emphasis is on the defendant’s own motives rather than on his perception of a potential contributor’s motive.” Dozier, 672 F.2d at 542. Telepathy aside, the crux of the matter is whether the official accepts the gratuity knowing that payment is being tendered because of his public office. In order to convict in an “under color” case, it is unnecessary to draw distinctions between payors who are galvanized by defendant’s public office and those who are galvanized by some overt misuse of that office. See, e.g., Spitler, 800 F.2d at 1274-75; United States v. Blackwood, 768 F.2d 131, 137 (7th Cir.), cert. denied, 474 U.S. 1020, 106 S.Ct. 569, 88 L.Ed.2d 554 (1985); United States v. Butler, 618 F.2d 411, 418 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980); cf. United States v. McKenna, 889 F.2d 1168, 1174 (1st Cir.1989) (“under color” language includes threats inherent in public office). In a last gasp, as if the third time were the charm, appellants press" }, { "docid": "11683613", "title": "", "text": "the giving of benefits.” Id. at 693. The government is free to prove that a system was in place in the Department of Education in Guam such that no words were necessary for Aguon to utter to get a payoff. The government did prove at the trial that Granich and Camacho were so regularly paid off by Han that no repetition of demands was necessary by them: a system as to them was in place and at work. But in the case of Aguon, who came into office after Granich and Camacho had embarked on extortion, the evidence of a system of which she was aware was different. Nevertheless, the government may be able to show that Aguon was part of a system whose customary operation demanded that a share go to the head honcho. The jury must be told that a demand of some kind is to be proved. The instruction, “So long as the motivation for the payment focuses on the recipient’s office, the conduct falls with the orbit of Section 1951 of Title 18” is not erroneous if properly qualified by surrounding language making a correlation between the payor’s motivation and the payee’s conduct. See United States v. Scacchetti, 668 F.2d 643 (2d Cir.), cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1982). No such language qualified the instruction here. The erroneous instructions on inducement and on the motivation of the payor, and the absence of an instruction on demand, were plain error. Their impact was compounded by the trial court’s failure to provide guidance on the intention the government must establish. The government on appeal argues that mens rea was implicit in the court’s use of “wrongful.” But the court’s own definition of the term negates this argument. The court told the jury that the defendant obtained property wrongfully if it was “obtained under color of official right” and she was “not lawfully entitled to this property.” This statement of the elements of the crime was incomplete. Intention was omitted. A homely example will illustrate the deficiency. A judge taking a colleague’s robe" }, { "docid": "12068843", "title": "", "text": "105 S.Ct. 905, 83 L.Ed.2d 920 (1985) (same). Evans, while acknowledging that the Fifth Circuit’s decision in United States v. Dozier, 672 F.2d 531 (5th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982), is not binding on this court, relies heavily on that decision for the proposition that extortion under color of official right requires that a public official make performance or non-performance of an official act contingent upon the payment of a fee. While this accurately described the conduct at issue in Dozier, that court made clear that the Hobbs Act was not limited to such behavior, but that: 672 F.2d at 539 (quoting United States v. Braasch, 505 F.2d 139, 151 (7th Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1562, 43 L.Ed.2d 775 (1975)); see also United States v. Westmoreland, 841 F.2d 572, 581 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988) (citing Dozier and reiterating that a public official may violate the Hobbs Act merely by accepting money in return for a requested exercise of official power); United States v. Wright, 797 F.2d 245, 250 (5th Cir.1986), cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987) (same). Thus, despite Evans’s protestations otherwise, we find the Fifth Circuit’s position stemming from its interpretations of the Williams decision entirely consistent with that of the Eleventh. [i]t matters not whether the public official induces payments to perform his duties or not to perform his duties, or even, as here, to perform or not to perform acts unrelated to his duties which can only be undertaken because of his official position. So long as the motivation for the payment focuses on the recipient’s office, the conduct falls within the ambit of 18 U.S.C. § 1951. As an alternative argument, Evans requests that this panel revisit the Eleventh Circuit position on extortion under color of official right, suggesting that the circuit’s holdings do not comport with the legislative history and plain meaning of the statute, and that Eleventh Circuit precedents such as O’Keefe and O’Malley conflict and" }, { "docid": "121577", "title": "", "text": "up priority of his projects); United States v. Price, 617 F.2d at 458 (victim testified that if he did not pay city electrical inspector money, he would later have to pay “twice something for the same job”); United States v. Braasch, 505 F.2d at 151 (protection money extorted from bar owners by police officers); see also United States v. Dozier, 672 F.2d 531, 538 (5th Cir.) (state commissioner of agriculture “asked for ten thousand dollars in return for granting a charter to the owner of a livestock auction barn”), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982); United States v. Barber, 668 F.2d 778, 781 (4th Cir.) (state liquor control commissioner removed quantities of state-owned liquor from state warehouses and subsequently billed the liquor suppliers for the shortage), cert. denied, 459 U.S. 829, 103 S.Ct. 66, 74 L.Ed.2d 67 (1982); United States v. Scacchetti, 668 F.2d 643, 646 (2d Cir.) (judge offered to assist automobile businessman with a license suspension case in return for free auto repair service), cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1982); United States v. French, 628 F.2d 1069, 1072 (8th Cir.) (city marshal accepted cash in return for settlement of forfeited bonds), cert. denied, 449 U.S. 956, 101 S.Ct. 364, 66 L.Ed.2d 221 (1980); United States v. Williams, 621 F.2d 123, 125-26 (5th Cir.1980) (school board member asked for and received airline tickets and cash from contractors doing business with the school board), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981); United States v. Grande, 620 F.2d 1026, 1031 (4th Cir.) (rea sonable inference that city housing director misused office by accepting money from prospective contractors in return for supplying cost data on prospective projects), cert. denied, 449 U.S. 830, 919, 101 S.Ct. 98, 317, 66 L.Ed.2d 35, 146 (1980); United States v. Summers, 598 F.2d 450, 452-53 (5th Cir.1979) (town public works official told contractor to “come up with five percent of the total bid price” if he wanted to get the contract); United States v. Cerilli, 603 F.2d 415, 418 (3d" }, { "docid": "3313718", "title": "", "text": "100 L.Ed.2d 608 (1988); United States v. Spitler, 800 F.2d 1267, 1274-75 (4th Cir.1986); United States v. Jannotti, 673 F.2d 578, 595 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). . We have trouble accepting some of the reasoning of the Ninth Circuit. For example, the Ninth Circuit justifies its rule by stating that \"[plublic officials who tell members of the public that favors are for sale commit a more serious offense than those who accept unsolicited payments.” Aguon, 851 F.2d at 1167. In our view, by accepting an unsolicited payment, the public official has conveyed to certain members of the public the message that favors are for sale. Given that such payments are illegal for both sides, the process of arranging a payment will often involve a subtle, and largely unspoken, negotiation period, during which each side ensures the intentions of the other. If a payment actually results, it is only because the public official consistently acted to assure the other side of his intentions. Outside the limited area of payments that appear to be campaign contributions, see, e.g., United States v. Dozier, 672 F.2d 531, 537-38 (5th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982), we find that the instructions given appropriately captured the importance of the public official’s actions in causing a payment to be made. . See, e.g., United States v. Wright, 797 F.2d 245, 250 (5th Cir.1986), cert. denied, 481 U.S. 1013, 107 S.Ct. 1887, 95 L.Ed.2d 495 (1987); United States v. Williams, 621 F.2d 123, 124 (5th Cir.1980), cert. denied, 450 U.S. 919, 101 S.Ct. 1366, 67 L.Ed.2d 346 (1981). We note that the Second Circuit has adopted a similar rule. \" ‘Extortion “under color of official right” is committed when a public official makes wrongful use of his office to obtain money not due him or his office.’ The conduct proscribed by the Hobbs Act is the wrongful use of public office, not merely the acceptance of benefits.\" O’Grady, 742 F.2d at 687 (quoting United States v. Margiotta, 688 F.2d" }, { "docid": "22221062", "title": "", "text": "Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 905, 83 L.Ed.2d 920 (1985); United States v. Jannotti, 673 F.2d 578, 595 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). In the past, we have successfully avoided this issue, see United States v. Jarabek, 726 F.2d 889, 904 n. 16 (1st Cir.1984); see also United States v. Hathaway, 534 F.2d 386, 394 (1st Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976), and do so again. We enjoy this luxury because the trial court’s instructions in this case required the jury to find, as a condition precedent to guilt, that defendants induced the payments. In the court’s words: “If there is no inducement, there is no crime.” The court made numerous other statements to the effect that inducement was necessary to convict under the Hobbs Act. It also explained: Inducement can take many forms, some more subtle than others, and any inducement is sufficient.... The mere passive receipt of a gift is not extortion. The government is not required to prove that the defendant demanded or directly solicited the payment made or that he offered anything specific in return for it. The instructions continued at length, describing ways in which the government might prove inducement. Inasmuch as the court’s charge tracked the language used by those circuits which impose an inducement requirement, see, e.g., Aguon, 851 F.2d at 1166 (“ ‘inducement’ can be in the overt form of a ‘demand,’ or in a more subtle form”); O’Grady, 742 F.2d at 691 (“inducement can take many forms, some more subtle than others”); id. at 693 (prosecution must show defendant “did something” to induce payment), appellants have obtained the benefit of the rule in its most liberal permutation. Because the charge passed muster on any view of the statutory language, appellants’ rights were amply protected. B. Mens Rea. Defendants claim that the district court’s instruction on specific intent was inappropriate. Near the beginning of the charge, the judge stated: The term “knowingly” means that the act was done voluntarily and intentionally," }, { "docid": "6995943", "title": "", "text": "the court’s construction of evidentiary rules are questions of law subject to de novo review. See United States v. Owens, 789 F.2d 750, 753 (9th Cir.1986), rev’d on other grounds, 484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988). We agree with other circuits that have held that evidence of the state of mind of a victim of a Hobbs Act extortion offense is admissible under Fed.R.Evid. 404(b). See United States v. Blackwood, 768 F.2d 131, 138 (7th Cir.) (“Evidence of a victim’s state of mind is an essential element of the Government’s case in a Hobbs Act prosecution for extortion under color of official right.”; its admission “is within the sound discretion of the court”) (citation omitted), cert. denied, 474 U.S. 1020, 106 S.Ct. 569, 88 L.Ed.2d 554 (1985); United States v. Dozier, 672 F.2d 531, 542 (5th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982). In this case, the tape recordings of Senator Robbins, as well as the victim testimony, were properly admitted to show that victims of the alleged extortion had a reasonable basis for believing that Montoya was using his official office to induce them to make the payments. The prosecutor’s closing argument, moreover, properly refers to the statements for this purpose. The admission of evidence of Montoya’s campaign expenditures was also properly within the court’s discretion. We agree with the Government that the evidence is probative of Montoya’s corrupt intent and motive for seeking unlawful payments in the form of campaign contributions. Finally, the exclusion of testimony from other legislators regarding their support of the shrimp legislation was not an abuse of discretion. Evidence of the legislators’ motives for supporting the legislation and opinions about the bill’s merits is irrelevant to Montoya’s own motives and intent in seeking the payments. III. CONCLUSION Montoya’s convictions for racketeering and money laundering under Counts I and IV of the indictment are AFFIRMED. Montoya’s Hobbs Act convictions under Counts II, and VI through IX, are REVERSED. This case is REMANDED for resentencing on Counts I and IV. Montoya’s Motion for Bail Pending Appeal," }, { "docid": "22221063", "title": "", "text": "The government is not required to prove that the defendant demanded or directly solicited the payment made or that he offered anything specific in return for it. The instructions continued at length, describing ways in which the government might prove inducement. Inasmuch as the court’s charge tracked the language used by those circuits which impose an inducement requirement, see, e.g., Aguon, 851 F.2d at 1166 (“ ‘inducement’ can be in the overt form of a ‘demand,’ or in a more subtle form”); O’Grady, 742 F.2d at 691 (“inducement can take many forms, some more subtle than others”); id. at 693 (prosecution must show defendant “did something” to induce payment), appellants have obtained the benefit of the rule in its most liberal permutation. Because the charge passed muster on any view of the statutory language, appellants’ rights were amply protected. B. Mens Rea. Defendants claim that the district court’s instruction on specific intent was inappropriate. Near the beginning of the charge, the judge stated: The term “knowingly” means that the act was done voluntarily and intentionally, not because of mistake or accident. The word “willfully” means that the act was committed voluntarily and purposely with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law. These instructions will apply to these terms throughout the remainder of these instructions. Thereafter, in enumerating the elements of Hobbs Act offenses, the court twice stated that the government had to prove that “defendant willfully and knowingly obtained property from the person.” No matter what type of extortion is alleged, specific intent is part and parcel of a Hobbs Act conviction. See, e.g., Aguon, 851 F.2d at 1168 (extortion under color of official right); United States v. Haimowitz, 725 F.2d 1561, 1572 (11th Cir.) (extortion through fear of economic loss), cert. denied, 469 U.S. 1072, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984); see also United States v. Sturm, 870 F.2d 769, 777 (1st Cir.1989). In our opinion, the definitions employed by the court below adequately conveyed the essence of the mens rea" }, { "docid": "22221061", "title": "", "text": "this language. Penologically, the dispute centers upon whether the Hobbs Act preserves the distinction between bribery and extortion. Linguistically, the dispute centers upon the effect of the disjunctive immediately preceding the words “under col- or of official right.” Some courts have decided that, given grammar and syntax, the “under color” phrase modifies the verb “induced,” thus requiring the prosecution to show that a defendant not only acted “under color of official right” but also that he induced payment by some form of Hobbs Act extortion. See United States v. Aguon, 851 F.2d 1158, 1162-63 (9th Cir.1988) (en banc); United States v. O’Grady, 742 F.2d 682, 694 (2d Cir.1984) (en banc). Other courts have rejected this interpretation, ruling that inducement is not required if Hobbs Act extortion occurs “under color of official right.” See, e.g., United States v. Holzer, 816 F.2d 304, 311 (7th Cir.1987), cert. denied, 484 U.S. 1076, 108 S.Ct. 1054, 98 L.Ed.2d 1016 (1988); United States v. Spitler, 800 F.2d 1267, 1274-75 (4th Cir.1986); United States v. Swift, 732 F.2d 878, 880 (11th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 905, 83 L.Ed.2d 920 (1985); United States v. Jannotti, 673 F.2d 578, 595 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). In the past, we have successfully avoided this issue, see United States v. Jarabek, 726 F.2d 889, 904 n. 16 (1st Cir.1984); see also United States v. Hathaway, 534 F.2d 386, 394 (1st Cir.), cert. denied, 429 U.S. 819, 97 S.Ct. 64, 50 L.Ed.2d 79 (1976), and do so again. We enjoy this luxury because the trial court’s instructions in this case required the jury to find, as a condition precedent to guilt, that defendants induced the payments. In the court’s words: “If there is no inducement, there is no crime.” The court made numerous other statements to the effect that inducement was necessary to convict under the Hobbs Act. It also explained: Inducement can take many forms, some more subtle than others, and any inducement is sufficient.... The mere passive receipt of a gift is not extortion." }, { "docid": "12068842", "title": "", "text": "decision makes clear that the requirement of inducement is automatically satisfied by the power connected with the public office. Therefore, once the defendant has shown that a public official has accepted money in return for a requested exercise of official power, no additional inducement need be shown. “The coercive nature of the official office provides all the inducement necessary.” Id. at 1248; see also United States v. Glass, 709 F.2d 669, 674 (11th Cir.1983) (coercive nature of official office takes the place of fear, duress, or threat). In United States v. O’Keefe, this circuit reiterated that “[i]n a Hobbs Act prosecution of a public official, the Government’s burden is simple: it must prove that the public official obtained property from another in exchange for performance of his official duties.” 826 F.2d 314, 319 (11th Cir.1987); see also United States v. Sorrow, 732 F.2d 176, 179 (11th Cir.1984) (compulsion not a necessary element in Hobbs Act prosecution of a public official); United States v. Swift, 732 F.2d 878, 880 (11th Cir.1984), cert. denied, 469 U.S. 1158, 105 S.Ct. 905, 83 L.Ed.2d 920 (1985) (same). Evans, while acknowledging that the Fifth Circuit’s decision in United States v. Dozier, 672 F.2d 531 (5th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982), is not binding on this court, relies heavily on that decision for the proposition that extortion under color of official right requires that a public official make performance or non-performance of an official act contingent upon the payment of a fee. While this accurately described the conduct at issue in Dozier, that court made clear that the Hobbs Act was not limited to such behavior, but that: 672 F.2d at 539 (quoting United States v. Braasch, 505 F.2d 139, 151 (7th Cir.1974), cert. denied, 421 U.S. 910, 95 S.Ct. 1562, 43 L.Ed.2d 775 (1975)); see also United States v. Westmoreland, 841 F.2d 572, 581 (5th Cir.), cert. denied, 488 U.S. 820, 109 S.Ct. 62, 102 L.Ed.2d 39 (1988) (citing Dozier and reiterating that a public official may violate the Hobbs Act merely by accepting money in return" }, { "docid": "11683614", "title": "", "text": "Title 18” is not erroneous if properly qualified by surrounding language making a correlation between the payor’s motivation and the payee’s conduct. See United States v. Scacchetti, 668 F.2d 643 (2d Cir.), cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1982). No such language qualified the instruction here. The erroneous instructions on inducement and on the motivation of the payor, and the absence of an instruction on demand, were plain error. Their impact was compounded by the trial court’s failure to provide guidance on the intention the government must establish. The government on appeal argues that mens rea was implicit in the court’s use of “wrongful.” But the court’s own definition of the term negates this argument. The court told the jury that the defendant obtained property wrongfully if it was “obtained under color of official right” and she was “not lawfully entitled to this property.” This statement of the elements of the crime was incomplete. Intention was omitted. A homely example will illustrate the deficiency. A judge taking a colleague’s robe by mistake does so under color of official right and he is not lawfully entitled to the robe. The taking is wrongful. But it is no crime: the judge acts without mens rea. One searches the instructions on extortion almost in vain for any instructions enlightening the jury on mens rea. One finds: It is not necessary for the government to show that the defendant actually intended to delay, obstruct or affect interstate commerce. Thus the jury was told what intention the government need not prove. It was not told what intention the government must prove. The general instruction that was given, “You may consider it reasonable to draw the inference and find that a person intends the natural and probable consequences of acts knowingly done or knowingly omitted,” has no bearing on the specific intention to commit the crime with which Aguon was charged. Criminal intent was a necessary element that the government had to prove. No act standing alone is a crime under the Hobbs Act. A guilty mind has to be proved" }, { "docid": "3313717", "title": "", "text": "hope that it will influence him in the exercise of his office and, if knowing that, he accepts the bribe. . See, e.g., United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975); United States v. Welch, 810 F.2d 485, 487 (5th Cir.1987). . United States v. Graves, 669 F.2d 964, 971 (5th Cir.1982); see also United States v. Yamin, 868 F.2d 130, 132 (5th Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989). . See, e.g., Aguon, 851 F.2d at 1162-66; Note, Misapplication of the Hobbs Act to Bribery, 85 Colum.L.Rev. 1340, 1346-51 (1985); Note, Prosecuting Public Officials Under the Hobbs Act: Inducement as an Element of Extortion Under Color of Official Right, 52 U.Chi.L.Rev. 1066, 1078-84 (1985). . Several circuits have considered and rejected the need to draw this distinction in a Hobbs Act prosecution. See, e.g., United States v. Evans, 910 F.2d 790, 796-97 (11th Cir.1990); United States v. Garner, 837 F.2d 1404, 1421-22 (7th Cir.1987), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022, 100 L.Ed.2d 608 (1988); United States v. Spitler, 800 F.2d 1267, 1274-75 (4th Cir.1986); United States v. Jannotti, 673 F.2d 578, 595 (3d Cir.) (en banc), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982). . We have trouble accepting some of the reasoning of the Ninth Circuit. For example, the Ninth Circuit justifies its rule by stating that \"[plublic officials who tell members of the public that favors are for sale commit a more serious offense than those who accept unsolicited payments.” Aguon, 851 F.2d at 1167. In our view, by accepting an unsolicited payment, the public official has conveyed to certain members of the public the message that favors are for sale. Given that such payments are illegal for both sides, the process of arranging a payment will often involve a subtle, and largely unspoken, negotiation period, during which each side ensures the intentions of the other. If a payment actually results, it is only because the public official consistently acted to assure the other side of his intentions. Outside" }, { "docid": "23554457", "title": "", "text": "juvenile delinquent). In any event, the defense cross-examined Brower for three days, providing the jury with ample opportunity to judge Brower’s possible biases and motivations. See Bright v. Shimoda, 819 F.2d 227, 229 (9th Cir.1987) (“When substantial cross-examination has taken place, courts are less inclined to find confrontation clause violations.”), cert. denied, 485 U.S. 970, 108 S.Ct. 1246, 99 L.Ed.2d 444 (1988). Accordingly, we conclude that the district court did not improperly restrict cross-examination. V. Hobbs Act Jury Instructions Dischner argues that the instructions incorrectly set out the elements of extortion in violation of the Hobbs Act, 18 U.S.C. § 1951, because they failed to require the government to prove that Dis- chner knew he was not lawfully entitled to the property. He relies on the First Circuit’s opinion in United States v. Sturm, 870 F.2d 769 (1st Cir.1989), to urge that the statute requires the government to prove that the defendant did not have any claim of right, and knew he was not legally entitled to the property in question. Although Dischner asserts that objections were raised to the extortion instructions, the record provided to us fails to reflect an objection on this ground. We therefore review for plain error. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). “A plain error is a highly prejudicial error affecting substantial rights.” Id. (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). “The availability of a better instruction is not a ground for reversal,” United States v. Ward, 914 F.2d 1340, 1344 (9th Cir.1990), and in determining the adequacy of jury instructions, we examine them in their entirety. United States v. Feldman, 788 F.2d 544, 555 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). We require courts to instruct on the mens rea required by the Hobbs Act. United States v. Aguon, 851 F.2d 1158, 1168 (9th Cir.1988) (en banc) (Aguon II) (“[Cjriminal intent must be submitted to the jury in a case charging extortion under the Hobbs Act.... The" }, { "docid": "22275858", "title": "", "text": "Such an effect, however, need only be slight. United States v. Coyne, 4 F.3d 100, 111 (2d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 929, 127 L.Ed.2d 221 (1994); see also Stephens, 964 F.2d at 429 (“The impact on interstate commerce need not be substantial to meet the statutory requirement; all that is required is that commerce be affected by the extortion.”); United States v. Haimowitz, 725 F.2d 1561, 1573 (11th Cir.) (“[A] showing of minimal effect on interstate commerce will sustain jurisdiction under the statute.”), cert. denied, 469 U.S. 1072, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984). The government established that Suburban funds crossed state borders as a normal part of its business. Indeed, the loan to Tomblin was for an out-of-state restaurant. Payment from funds of a business engaged in interstate commerce satisfies the requirement of an effect on interstate commerce. Coyne, 4 F.3d at 111. Consequently, the evidence was sufficient to support the jury’s finding that the alleged extortion affected interstate commerce. 2 Tomblin next contends that, because he was a private citizen, he cannot be eonvicted of extortion under color of official right. Usually, only public officials are charged with extorting property under color of official right. See United States v. Snyder, 930 F.2d 1090, 1093 (5th Cir.) (discussing trial court’s definition that “extortion under color of official right means the wrongful taking by a public officer of money or property not due to the officer or the office”), cert. denied, 502 U.S. 942, 112 S.Ct. 380, 116 L.Ed.2d 331 (1991). The official need not actually have the powers he threatens to use, nor is the offense limited to elected officials. See United States v. Freeman, 6 F.3d 586, 593 (9th Cir.1993) (“[T]he Hobbs Act reaches anyone who actually exercises official powers, regardless of whether those powers were conferred by election, appointment, or some other method.”), cert. denied, — U.S.-, 114 S.Ct. 1661, 128 L.Ed.2d 378 (1994). Moreover, the victim need not actually know the official’s position; it is enough that the victim reasonably believe the official can do what he threatens. Stephens, 964 F.2d" }, { "docid": "23554458", "title": "", "text": "objections were raised to the extortion instructions, the record provided to us fails to reflect an objection on this ground. We therefore review for plain error. United States v. Bustillo, 789 F.2d 1364, 1367 (9th Cir.1986). “A plain error is a highly prejudicial error affecting substantial rights.” Id. (quoting United States v. Giese, 597 F.2d 1170, 1199 (9th Cir.), cert. denied, 444 U.S. 979, 100 S.Ct. 480, 62 L.Ed.2d 405 (1979). “The availability of a better instruction is not a ground for reversal,” United States v. Ward, 914 F.2d 1340, 1344 (9th Cir.1990), and in determining the adequacy of jury instructions, we examine them in their entirety. United States v. Feldman, 788 F.2d 544, 555 (9th Cir.1986), cert. denied, 479 U.S. 1067, 107 S.Ct. 955, 93 L.Ed.2d 1003 (1987). We require courts to instruct on the mens rea required by the Hobbs Act. United States v. Aguon, 851 F.2d 1158, 1168 (9th Cir.1988) (en banc) (Aguon II) (“[Cjriminal intent must be submitted to the jury in a case charging extortion under the Hobbs Act.... The court’s failure to give an instruction on a vital element of the crime was plain error.”) (adopting language from United States v. Aguon, 813 F.2d 1413, 1419 (9th Cir.1987) (Aguon I)). In the case of extortion by inducing payment through fear of economic loss, however, we have not read other elements into the Act. Dischner does not fault the court’s instructions on criminal intent and, read as a whole, we believe they necessarily required a finding that Dischner knew he had no right to the payments induced. For this reason we need not decide whether the government must prove that the defendant knew he had no entitlement. The district court instructed that the jury must find beyond a reasonable doubt that (1) the defendant induced or attempted to induce the person described in the indictment to part with money or property; (2) the defendant did so knowingly and willfully by means of “extortion,” as defined in the statute and in other instructions; and (3) the extortionate transaction delayed, interrupted, or adversely affected interstate commerce. The" }, { "docid": "22221066", "title": "", "text": "payor might be thinking. In extortion, “[t]he emphasis is on the defendant’s own motives rather than on his perception of a potential contributor’s motive.” Dozier, 672 F.2d at 542. Telepathy aside, the crux of the matter is whether the official accepts the gratuity knowing that payment is being tendered because of his public office. In order to convict in an “under color” case, it is unnecessary to draw distinctions between payors who are galvanized by defendant’s public office and those who are galvanized by some overt misuse of that office. See, e.g., Spitler, 800 F.2d at 1274-75; United States v. Blackwood, 768 F.2d 131, 137 (7th Cir.), cert. denied, 474 U.S. 1020, 106 S.Ct. 569, 88 L.Ed.2d 554 (1985); United States v. Butler, 618 F.2d 411, 418 (6th Cir.), cert. denied, 447 U.S. 927, 100 S.Ct. 3024, 65 L.Ed.2d 1121 (1980); cf. United States v. McKenna, 889 F.2d 1168, 1174 (1st Cir.1989) (“under color” language includes threats inherent in public office). In a last gasp, as if the third time were the charm, appellants press a final mens rea objection. On the topic of extortion by fear of economic harm, the district court charged that “the exploitation of the payor’s reasonable fear constituted extortion whether or not the defendant was responsible for creating that fear and despite the absence of any direct threats.” Appellants speculate that the remark could have allowed the jury to convict them without proof that they were aware of, or intended to take advantage of, the victim’s fear. But, this bit of unmitigated conjecture improperly wrests the court’s comment from its contextual moorings. See McKenna, 889 F.2d at 1173 (reviewing instructions “in light of the whole charge and the whole trial, not singularly”). The disputed statement was made in a section of the instructions defining (and distinguishing) various types of Hobbs Act extortion. The court’s emphasis was on the source of the fear which was being exploited, not on exploitation itself. Nothing in this preachment, or elsewhere in the charge, negated the need for the prosecution to prove intent to exploit. In addition, the court told" }, { "docid": "22275857", "title": "", "text": "challenges his extortion conviction on several grounds. He argues first that the evidence was insufficient to support the jury’s finding that the alleged extortion affected interstate commerce. He also argues that, because he was not a public official, he could not be convicted of extorting money under color of official right. Next, Tomblin contends that the district court improperly refused to give his requested instruction regarding fear of economic harm. He further asserts that the evidence was insufficient to convict him of extorting money through fear of economic harm. Lastly, he argues that, even if the evidence was sufficient 'on the fear of economic harm theory, the insufficiency on the under color of official right theory requires reversal because the instructions asked only for a general verdict on the extortion count. 1 Tomblin argues that the government failed to establish that the alleged extortion affected interstate commerce. An effect on interstate commerce is a required element of the offense of extortion under the Hobbs Act. United States v. Stephens, 964 F.2d 424, 429 (5th Cir.1992). Such an effect, however, need only be slight. United States v. Coyne, 4 F.3d 100, 111 (2d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 929, 127 L.Ed.2d 221 (1994); see also Stephens, 964 F.2d at 429 (“The impact on interstate commerce need not be substantial to meet the statutory requirement; all that is required is that commerce be affected by the extortion.”); United States v. Haimowitz, 725 F.2d 1561, 1573 (11th Cir.) (“[A] showing of minimal effect on interstate commerce will sustain jurisdiction under the statute.”), cert. denied, 469 U.S. 1072, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984). The government established that Suburban funds crossed state borders as a normal part of its business. Indeed, the loan to Tomblin was for an out-of-state restaurant. Payment from funds of a business engaged in interstate commerce satisfies the requirement of an effect on interstate commerce. Coyne, 4 F.3d at 111. Consequently, the evidence was sufficient to support the jury’s finding that the alleged extortion affected interstate commerce. 2 Tomblin next contends that, because he was a" }, { "docid": "22221064", "title": "", "text": "not because of mistake or accident. The word “willfully” means that the act was committed voluntarily and purposely with the specific intent to do something the law forbids; that is to say, with bad purpose either to disobey or to disregard the law. These instructions will apply to these terms throughout the remainder of these instructions. Thereafter, in enumerating the elements of Hobbs Act offenses, the court twice stated that the government had to prove that “defendant willfully and knowingly obtained property from the person.” No matter what type of extortion is alleged, specific intent is part and parcel of a Hobbs Act conviction. See, e.g., Aguon, 851 F.2d at 1168 (extortion under color of official right); United States v. Haimowitz, 725 F.2d 1561, 1572 (11th Cir.) (extortion through fear of economic loss), cert. denied, 469 U.S. 1072, 105 S.Ct. 563, 83 L.Ed.2d 504 (1984); see also United States v. Sturm, 870 F.2d 769, 777 (1st Cir.1989). In our opinion, the definitions employed by the court below adequately conveyed the essence of the mens rea requirement for Hobbs Act extortion. Compare, e.g., Aguon, 851 F.2d at 1168; United States v. Kattar, 840 F.2d 118, 124 n. 4 (1st Cir.1988); United States v. Dozier, 672 F.2d 531, 542 (5th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982); United States v. Scacchetti, 668 F.2d 643, 649 (2d Cir.), cert. denied, 457 U.S. 1132, 102 S.Ct. 2957, 73 L.Ed.2d 1349 (1982); cf. Sturm, 870 F.2d at 775 (rejecting “purely objective” definitions which contained “no reference to the defendant’s state of mind”). Furthermore, the charge as a whole made it plain that the definitions applied across the board. There was no error. Appellants also denigrate the instruction on “under color” extortion from another standpoint. The charge suggested, appellants say, that a conviction could be based on a defendant’s knowledge that the victim was motivated by the public office held rather than by some misuse of that office. But, this hairsplitting incorrectly shifts the mens rea focus to fine— and wholly needless—distinctions concerning what a defendant might think that a" }, { "docid": "3313716", "title": "", "text": "stipulated that the tape was an accurate recording of a conversation he had with Marshall. . 851 F.2d 1158 (9th Cir.1988) (en banc) (6-5 decision); see also United States v. O'Grady, 742 F.2d 682, 687-91 (2d Cir.1984) (en banc). . In his Supplemental and Amending Requested Jury Instructions, Pattan proposed two alternate definitions for extortion under color of official right. His first proposal read as follows: Extortion \"under color of official right” does require that a victim was induced to give Mr. Pattan money. In order to find Mr. Pat-tan guilty of extortion in this case, you would have to find that Mr. Pattan did something, under color of his office, to cause the giving of benefits. It is not enough that Mr. Pattan received a bribe. The government must prove that Mr. Pattan sought this money. If, and only if, the trial judge refused to give this requested instruction, then Pattan provided the following alternate instruction: It is extortion if the official knows that the bribe, gift, or other favor is motivated by a hope that it will influence him in the exercise of his office and, if knowing that, he accepts the bribe. . See, e.g., United States v. Park, 421 U.S. 658, 95 S.Ct. 1903, 44 L.Ed.2d 489 (1975); United States v. Welch, 810 F.2d 485, 487 (5th Cir.1987). . United States v. Graves, 669 F.2d 964, 971 (5th Cir.1982); see also United States v. Yamin, 868 F.2d 130, 132 (5th Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3258, 106 L.Ed.2d 603 (1989). . See, e.g., Aguon, 851 F.2d at 1162-66; Note, Misapplication of the Hobbs Act to Bribery, 85 Colum.L.Rev. 1340, 1346-51 (1985); Note, Prosecuting Public Officials Under the Hobbs Act: Inducement as an Element of Extortion Under Color of Official Right, 52 U.Chi.L.Rev. 1066, 1078-84 (1985). . Several circuits have considered and rejected the need to draw this distinction in a Hobbs Act prosecution. See, e.g., United States v. Evans, 910 F.2d 790, 796-97 (11th Cir.1990); United States v. Garner, 837 F.2d 1404, 1421-22 (7th Cir.1987), cert. denied, 486 U.S. 1035, 108 S.Ct. 2022," }, { "docid": "121610", "title": "", "text": "Jannotti, 673 F.2d 578, 594-95 (3d Cir.), cert. denied, 457 U.S. 1106, 102 S.Ct. 2906, 73 L.Ed.2d 1315 (1982); United States v. Dozier, 672 F.2d 531, 539 (5th Cir.), cert. denied, 459 U.S. 943, 103 S.Ct. 256, 74 L.Ed.2d 200 (1982); United States v. Hedman, 630 F.2d 1184, 1195 (7th Cir.1980), cert. denied, 450 U.S. 965, 101 S.Ct. 1481, 67 L.Ed.2d 614 (1981). Common law extortion is the unlawful taking by any officer under color of his office of “any money or thing of value that is not due him, or more than is due, or before it is due.” United States v. Trotta, supra, 525 F.2d at 1100 n. 8. To constitute extortion under the common law, the taking must have been done with corrupt intent. People v. Clark, 242 N.Y. 313, 325, 151 N.E. 631 (1926); 3 R. Anderson, Wharton’s Criminal Law & Procedure § 1394 (1957); 1 W. Burdick, The Law of Crime § 277 (1946). When Congress borrows terms of art from the common law, “it presumably knows and adopts the cluster of ideas” that are attached to them. Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249, 96 L.Ed. 288 (1952). Accordingly, in the prosecution of a public official under the Hobbs Act, the Government is required to prove corrupt or criminal intent on the part of the accused, i.e., an intent to do knowingly and willfully that which is condemned as wrong by law. See United States v. Price, 617 F.2d 455, 460 (7th Cir.1979); United States v. Adcock, 558 F.2d 397, 402 (8th Cir.), cert. denied, 434 U.S. 921, 98 S.Ct. 395, 54 L.Ed.2d 277 (1977). If the Hobbs Act, as thus interpreted, is charged Correctly, no public official will be convicted for accepting without a quid pro quo a cigar, a cigarette, a hot dog, or even a trip to Disneyland. Moreover, if the gift is sufficiently modest that it does not deplete the resources of the giver and elicits no action of any sort in response, it is unlikely to cause even the modest interference with interstate commerce" } ]

[ { "docid": "12496361", "title": "", "text": "other juries ? Answer: That’s right. Question: Have you as a jury commissioner made a systematic exclusion of Negroes from the jury list? Answer: No, never did. ###### Question: On several occasions, have you not submitted the names of Negroes from the Tenth ward, from the Fifth and from the Sixth wards? Answer: That’s right.” There are several principles of law that are now clear in this difficult area. The first is that the systematic exclusion of Negroes from juries in judicial districts where Negroes represent a substantial part of the population constitutes a deprivation of equal protection under the Fourteenth Amendment. Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76, where the Supreme Court said, “When a jury selection plan, whatever it is, operates in such way ,as always to result in the complete and long-continued exclusion of any representative at all from a large group of negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.” 332 U.S. 463, 469, 68 S.Ct. 184, 187. The second proposition which is equally clear is that the inclusion of a minimal or token number of Negroes on a jury list does not prevent the systematic exclusion rule from operating, for the 'Supreme Court has said in Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469: “Of course, token summoning of Negroes for jury service does not comply with equal protection, Smith v. [State of] Texas, 311 U.S. 128 [61 S.Ct. 164, 85 L.Ed. 84].” See also United States ex rel. Willie Seals, Jr. v. Wiman, 5 Cir., 304 F.2d 53, 67. A further proposition, not in dispute, is that the Constitution does not require an exact proportion between the percentage of Negroes in the population and the percentage of Negroes on the jury lists, nor does the Constitution require that any particular panel of jurors in a criminal trial include members of the race of the accused person. Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759. Finally, it is" } ]

[ { "docid": "15948801", "title": "", "text": "respects denied. So ordered. . Petitioner does not challenge the other questions, and ail of them are in substantial conformity with § 661 of the New York State Judiciary Law, McKinney’s Consol.Laws, c. 30, relating to the statutory requirements for jurors. . Whitus v. Georgia, 385 U.S. 545, 549-550, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967). . Fay v. New York, 332 U.S. 261, 284, 67 S.Ct. 1613, 91 L.Ed. 2043 (1947). . Allen v. State, 110 Ga.App. 56, 137 S.E.2d 711 (1964). See Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966); State v. Madison, 240 Md. 265, 213 A.2d 880, 885 (1965); Schowgurow v. State, 240 Md. 121, 213 A.2d 475 (1965). But see Salisbury v. Grimes, 406 F.2d 50 (5th Cir. 1969); Mosley v. Smith, 404 F.2d 346 (5th Cir. 1968). . Whitus v. Georgia, supra, 385 U.S. at 550, 87 S.Ct. 643. . Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Patton v. Mississippi, 332 U.S. 463, 466, 68 S.Ct. 184, 92 L.Ed. 76, 1 A.L.R.2d 1286 (1947); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Labat v. Bennett, supra, 365 F.2d at 725. . Sims v. Georgia, 389 U.S. 404, 407-408, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Whitus v. Georgia, supra, 385 U.S. at 550-552, 87 S.Ct. 643; Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953). . Whitus v. Georgia, supra, 385 U.S. at 550-552, 87 S.Ct. 643. . Sims v. Georgia, supra, 389 U.S. at 407-408, 88 S.Ct. 523; Whitus v. Georgia, supra, 385 U.S. at 550-552, 87 S.Ct. 643; Avery v. Georgia, supra. . Sims v. Georgia, supra; Whitus v. Georgia, supra; Avery v. Georgia, supra. . N.Y. Judiciary Law § 596. . Fay v. New York, supra, 332 U.S. at 270, 67 S.Ct. 1613. . See Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). . United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967); Gilbert v. California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178" }, { "docid": "9559427", "title": "", "text": "only practice sanctioned in Keyes, was to shift the burden of persuasion where the defendant had a history of discrimination and significant numerical disparities were involved. This reading of Keyes and the earlier cases is also supported by the cases relied on in Chambers. Chambers analogized the discharge of a disproportionately large number of black teachers to those cases involving the systematic exclusion of black grand and petit jurors. See Chambers, 364 F.2d at 192-93. In such cases, a prima facie case by the defendant places the burden of persuasion on the state to disprove intentional discrimination in the selection of jurors. This burden shifting occurs, however, only upon a showing of disproportionate underrepresentation of blacks on the state’s juries. See Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947). Thus, although the equal protection clause is not violated unless intentional discrimination is shown, “[i]t is also not infrequently true that the discriminatory impact — in the jury cases for example, the totally or seriously disproportionate exclusion of Negroes from jury venires — may for all practical purposes demonstrate unconstitutionality because in various circumstances the discrimination is very difficult to explain on nonracial grounds.” Washington v. Davis, 426 U.S. 229, 242, 96 S.Ct. 2040, 2048, 48 L.Ed.2d 597 (1976). Numerical disparities were clearly the crucial element necessary to shift the burden of persuasion to the defendant in Chambers, Keyes and other similar cases of that vintage. Nonetheless, later cases, including Rolfe, fail to set forth the requirement of numerical disparity as a precondition to shifting the burden of persuasion. See 391 F.2d at 80. The test originally stated in Chambers and approved of in Keyes has become diluted over the years, at least in its restatements if not in all its applications, to the point that a showing that a school system was once ordered to desegregate" }, { "docid": "17475143", "title": "", "text": "state court denied Gibson’s motion to quash. Following the Louisiana Supreme Court’s denial of his appeal, appellant Gibson filed his habeas corpus petition in the lower court. That court denied the petition without a hearing, holding both that appellant had not established a case of prima facie discrimination in jury selection and that the trial court could have found the state’s evidence sufficient to rebut any presumption which appellant had raised. A state court conviction cannot stand if it is based on an indictment of a grand jury or the verdict of a petit jury from which black persons were excluded because of their race. Alexander v. Louisiana, 1972, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536; Whitus v. Georgia, 1967, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599; Eubanks v. Louisiana, 1958, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991; Avery v. Georgia, 1953, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244; Smith v. Texas, 1940, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84; Strauder v. West Virginia, 1880, 100 U.S. 303, 25 L.Ed. 664. While the party alleging systematic exclusion bears the initial burden of establishing a prima facie case of discriminatory jury selection, a prima facie case is established when it is demonstrated that a significant disparity exists between the percentage of blacks chosen for jury duty and the percentage of blacks eligible for jury duty in the population from which jurors are drawn. Hernandez v. Texas, 1954, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 886; Patton v. Mississippi, 1947, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76. Further, neither proof of complete exclusion of blacks from the jury rolls, Whitus v. Georgia, supra, nor proof of specific acts of discrimination, Avery v. Georgia, supra, is required to establish a prima facie case of jury discrimination. This Court has repeatedly held that “long continuing” and “decided variations” between the racial proportions on jury lists and the racial proportions in the population shift the burden to the state to furnish a constitutionally acceptable explanation for such disparities. Labat v. Bennett, 5" }, { "docid": "21491950", "title": "", "text": "164, 85 L.Ed. 84 (1940); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942) ; Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Brunson v. North Carolina, 333 U.S. 851, 68 S.Ct. 634, 92 L.Ed. 1132 (1948); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Ross v. Texas, 341 U.S. 918, 71 S.Ct. 742, 95 L.Ed. 1352 (1951) ; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469 (1953); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958) ; Coleman v. Alabama, 84 S.Ct. 1152 (1964) In order to insure that there is no exclusion of persons because of their race, the Supreme Court has directed jury commissioners to make a conscious effort to select a jury composed of a cross-section of the community. In Brown v. Allen, 344 U.S. 443, 474, 73 S.Ct. 397, 416 (1953), Justice Reed, speaking for the majority, stated: “Our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.” (Emphasis added.) in making their selection of prospective jurors commissioners must, indeed, are bound, to acquaint themselves with qualified members of all races and use a method which will insure selection from each major racial group. Hernandez v. Texas, supra; Cassell v. Texas, supra; Hill v. Texas, supra; Smith v. Texas, supra. In the latter case a unanimous court held: “Where jury commissioners limit those from whom grand juries are selected to their own personal acquaint-anee, discrimination can arise from corn-missioners who know" }, { "docid": "1761466", "title": "", "text": "the Operation of the Jury System to the Chief Justice of the United States, Chairman, and Members of the Judicial Conference of the United States, at 10 (September 1973, denominated as Agenda F-6). . 28 U.S.C. § 1861 et seq. (1968). . See Alexander v. Louisiana, 405 U.S. 625, 626 n. 3, 92 S.Ct. 1221, 1223 n. 3, 31 L.Ed.2d 536, 539 n. 3 (1972); Pierre v. Louisiana, 306 U.S. 354, 362, 59 S.Ct. 536, 83 L.Ed. 757 (1939). . See 28 U.S.C. § 1864 (1970). . See, e.g., Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972); Turner v. Fouche, 396 U.S. 346, 90 S.Ct. 532, 24 L.Ed.2d 567 (1970); Carter v. Jury Commission of Greene County, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Sims v. Georgia, 389 U.S. 404, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967); Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964); Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839 (1950); Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Akins v. Texas, 325 U.S. 398, 65 S.Ct. 1276, 89 L.Ed. 1692 (1945); Hill v. Texas, 316 U.S. 400, 62 S.Ct. 1159, 86 L.Ed. 1559 (1942); Smith v. Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Martin v. Texas, 200 U.S. 316, 26 S.Ct. 338," }, { "docid": "12797430", "title": "", "text": "disparity between the percentage of Negroes among persons putatively qualified to serve as jurors and the percentage of Negroes actually on the jury lists in the case in question. Whitus v. Georgia, supra, 385 U.S. at 552, 87 S.Ct. at 647, 17 L.Ed.2d at 605; Wright v. Smith, 5 Cir. 1973, 474 F.2d 349, 351; Gibson v. Blair, supra, 467 F.2d at 844; Black v. Curb, 5 Cir. 1972, 464 F.2d 165, 168. Beyond this initial showing, the prima facie case may be proved in one of two ways. A prima facie case may be made by showing that the discriminatory result in the jury list accompanied a system of jury selection permitting possible racial identification of potential jurors at any stage in the process of selection of the jury list. Whitus v. Georgia, supra, 385 at 552, 87 S.Ct. at 647, 17 L.Ed.2d at 605; Williams v. Georgia, supra, 349 U.S. at 382, 75 S.Ct. at 819, 99 L.Ed. at 1170 (dictum); Avery v. Georgia, supra, 345 U.S. at 562, 73 S.Ct. at 893, 97 L.Ed. at 1248; Wright v. Smith, supra, 474 F.2d at 351. Alternatively, a prima facie case may be established by showing that the discriminatory result in the jury list in a particular case was representative of the results obtained in a history of cases in the particular jurisdiction in which the trial occurred. Patton v. Mississippi, 1947, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (total exclusion of Negroes from grand and petit juries); Smith v. Texas, 1940, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (token inclusion of Negroes in grand juries); Norris v. Alabama, 1935, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (total exclusion of Negroes from grand and petit juries); Scott v. Walker, 5 Cir. 1966, 358 F.2d 561 (token inclusion of Negroes on grand juries and in petit jury lists). Upon testing appellant’s proof by these standards, we find that he failed to make even the threshold showing prerequisite to establishment of a prima facie ease of discriminatory jury selection. The one factor crucial to the" }, { "docid": "23460879", "title": "", "text": "Virginia, 100 U.S. 303, 25 L.Ed. 664. As the Supreme Court stated in Strauder v. State of West Virginia: “The very idea of a jury is that it is a body of men composed of the peers or equals of the person whose rights it is selected or summoned to determine * * State laws governing the qualifications of voters are also subject to the limitations of the Equal Protection Clause. Carrington v. Rash, 1965, 380 U.S. 89, 85 S.Ct. 775, 13 L.Ed.2d 675. The evidence in this case as above outlined, without any serious dispute, clearly reflects wide disproportions between the number of qualified Negro citizens in Lowndes County and the number of names of Negroes placed on the jury roll and in the jury box by the defendant jury commissioners and the defendant jury commission clerk. This proof, without more, requires an inference of systematic exclusion on racial grounds; this inference, in the absence of some satisfactory explanation, is sufficient to show that the male plaintiffs and the members of the class they represent have been denied the constitutional rights they assert. Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77; Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; United States ex rel. Seals v. Wiman, 5 Cir., 304 F.2d 53; United States ex rel. Goldsby v. Harpole, 5 Cir., 263 F.2d 71. See also the recent opinion and order of the United States District Court for the Middle District of Alabama in Mitchell et al., Plaintiffs, United States of America, Plaintiff and Amicus Curiae v. Johnson et al., Defendants, January 18, 1966, 250 F.Supp. 117. Not only did the defendant jury commissioners and the defendant jury commission clerk fail to offer some satisfactory explanation to rebut this inference, but their testimony clearly reflected that they pursued" }, { "docid": "1761491", "title": "", "text": "v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967) (opportunity to discriminate where the source, tax digests, was maintained on segregated basis); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) (same); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964) (same); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955) (rule of exclusion); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953) (panel selected from container with different color tickets for Negroes and whites); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939) (rule of exclusion); Hale v. Kentucky, 303 U.S. 613, 616, 58 S.Ct. 753, 82 L.Ed. 1050 (1938) (rule of exclusion); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) (both rule of exclusion and opportunity to discriminate). . Compare, e. g., Smith v. Yeager, 465 F.2d 272, 274 (3d Cir. 1972); Stephens v. Cox, 449 F.2d 657, 659 (4th Cir. 1971); Carmical v. Craven, 457 F.2d 582, 588 (9th Cir. 1971); Black v. Curb, 422 F.2d 656, 659 (5th Cir. 1970) (dicta); United States v. Leonetti, 291 F.Supp. 461, 477 (S.D.N.Y.1968) (statistics alone insufficient to establish prima facie case) with, e. g., Gibson v. Blair, 467 F.2d 842, 844 (5th Cir. 1973); United States v. Hyde, 448 F.2d 815, 825 (5th Cir. 1971); United States v. Butera, 420 F.2d 564 (1st Cir. 1971) ; Rabinowitz v. United States, 366 F.2d 34, 58 (5th Cir. 1966) (Brown, J., concurring); Billingsley v. Clayton, 359 F.2d 13, 16 (5th Cir. 1965); Scott v. Walker, 358 F.2d 561 (5th Cir. 1966) (statistics sufficient). . Smith v. Yeager, 465 F.2d 272, 279 (3d Cir. 1972) . . 405 U.S. at 630, 92 S.Ct. at 1225, 31 L.Ed.2d 536. “The progressive decimation of potential Negro grand jurors is indeed striking here, but we do not rest our conclusion [that a prima facie was made] ... on statistical improbability alone.” . In Hawkins v. Town of Shaw, 461 F.2d 1171, 1181 n. 7 (5th Cir." }, { "docid": "1761490", "title": "", "text": "See, e. g., Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) (segregated tax books). . See, e. g., Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (jury questionnaire form containing color designation); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953) (names of Blacks and whites in both source and functional equivalent of master jury wheel contained on different color index cards). . Compare, e. g., Bullock v. Carter, 405 U.S. 134, 144, 92 S.Ct. 849, 31 L.Ed.2d 92 (1972) (because Texas filing fee scheme draws a wealth distinction on its face, Court stated it could not help but acknowledge its deleterious effect on the poor) with e. g., Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971) (Indiana multi-member districting scheme did not classify on its face and hence Court required proof that scheme actually discriminated and would not assume that underrepresentation of ghetto residents could be ascribed to the electoral system). . E. g., Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967) (opportunity to discriminate where the source, tax digests, was maintained on segregated basis); Whitus v. Georgia, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) (same); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964) (same); Reece v. Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955) (rule of exclusion); Avery v. Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953) (panel selected from container with different color tickets for Negroes and whites); Pierre v. Louisiana, 306 U.S. 354, 59 S.Ct. 536, 83 L.Ed. 757 (1939) (rule of exclusion); Hale v. Kentucky, 303 U.S. 613, 616, 58 S.Ct. 753, 82 L.Ed. 1050 (1938) (rule of exclusion); Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) (both rule of exclusion and opportunity to discriminate). . Compare, e. g., Smith v. Yeager, 465 F.2d 272, 274 (3d Cir. 1972); Stephens v. Cox, 449 F.2d 657, 659 (4th Cir. 1971); Carmical v." }, { "docid": "7582106", "title": "", "text": "protection of the law, Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880), and any conviction obtained under such a system cannot stand. Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); Smith v. State of Texas, 311 U.S. 128, 61 S.Ct. 164, 85 L.Ed. 84 (1940); Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76 (1947); Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Arnold v. North Carolina, 376 U.S. 773, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964). The record in the Alabama coram nobis proceeding unquestionably demonstrates that Negroes were systematically excluded from Montgomery County juries in 1932, the time of appellant’s conviction, thus establishing the necessary facts to warrant a finding of denial of constitutional rights. See Swain v. State of Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965); Scott v. Walker, 5 Cir., 1966, 358 F.2d 561. The Clerk of the Circuit Court of Montgomery County testified that to the best of his recollection, the first Negro citizen in Montgomery County was placed on the jury rolls in 1936. Negroes constituted over 50 per cent of the population of that county, however. The Clerk further stated that “going away back to right around 1907 or 1908 or 1909, I think some colored people served on juries then but how many, I don’t know, but I know there were a few and then there was a gap there where I don’t recall seeing any.” In answer to a specific question he did not recall seeing any Negroes on juries from at least five years prior to 1982 (the year of Hamilton's conviction) until 1936 when he placed the name of a Negro on the rolls. This testimony alone established a prima facie case of systematic exclusion, and placed the burden on the state to refute it, cf. Reece v. State of Georgia, 350 U.S. 85, 88, 76 S.Ct. 167," }, { "docid": "23460880", "title": "", "text": "represent have been denied the constitutional rights they assert. Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77; Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; United States ex rel. Seals v. Wiman, 5 Cir., 304 F.2d 53; United States ex rel. Goldsby v. Harpole, 5 Cir., 263 F.2d 71. See also the recent opinion and order of the United States District Court for the Middle District of Alabama in Mitchell et al., Plaintiffs, United States of America, Plaintiff and Amicus Curiae v. Johnson et al., Defendants, January 18, 1966, 250 F.Supp. 117. Not only did the defendant jury commissioners and the defendant jury commission clerk fail to offer some satisfactory explanation to rebut this inference, but their testimony clearly reflected that they pursued a course of conduct in the administration of their office which was designed to discriminate and had the effect of discriminating in the selection of jurors in Lowndes County, Alabama, on racial grounds. Moreover, the establishment and use of a relatively small number of white male citizens’ names in the jury box as a “recirculating jury pool” not only made possible the exclusion of qualified Negroes from jury duty in a county in the Black Belt seetion of Alabama where the total Negro population is 80.7% of the total county population, but also resulted in magnifying the power vested in the relatively small group of Lowndes County white citizens as opposed to the absolute lack of power growing out of the right to serve as grand and/or petit jurors by members of the Negro race. It must be concluded, therefore, that in their action, conduct, and procedures followed, the defendant commissioners and the defendant jury clerk in Lowndes County, Alabama, not only failed to adhere to the laws of the State of Alabama relating to" }, { "docid": "7582107", "title": "", "text": "1966, 358 F.2d 561. The Clerk of the Circuit Court of Montgomery County testified that to the best of his recollection, the first Negro citizen in Montgomery County was placed on the jury rolls in 1936. Negroes constituted over 50 per cent of the population of that county, however. The Clerk further stated that “going away back to right around 1907 or 1908 or 1909, I think some colored people served on juries then but how many, I don’t know, but I know there were a few and then there was a gap there where I don’t recall seeing any.” In answer to a specific question he did not recall seeing any Negroes on juries from at least five years prior to 1982 (the year of Hamilton's conviction) until 1936 when he placed the name of a Negro on the rolls. This testimony alone established a prima facie case of systematic exclusion, and placed the burden on the state to refute it, cf. Reece v. State of Georgia, 350 U.S. 85, 88, 76 S.Ct. 167, 170, 100 L.Ed. 77 (1955); Arnold v. North Carolina, 376 U.S. 773, 774, 84 S.Ct. 1032, 12 L.Ed.2d 77 (1964), or to show that there was a true waiver by appellant of his constitutional rights. Whitus v. Balkcom, 5 Cir., 1964, 333 F.2d 496, 507; Labat v. Bennett, 5 Cir., 1966, 365 F.2d 698, 707, 719. The state made no attempt to rebut the statistical evidence of racial discrimination. Instead, relying solely on Alabama law, appellee argues waiver based on delay of appellant in asserting his rights. The contention is deficient in several respects. Delay alone is no bar to federal habeas relief to correct jurisdictional and constitutional trial errors. Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837 (1963); United States v. Smith, 331 U.S. 469, 475, 67 S.Ct. 1330, 1333, 91 L.Ed. 1610 (1947); Commonwealth of Pennsylvania v. Claudy, 350 U.S. 116, 123, 76 S.Ct. 223, 227, 100 L.Ed. 126 (1956); Palmer v. Ashe, 342 U.S. 134, 137, 72 S.Ct. 191, 193, 96 L.Ed. 154 (1952). In Whitus and Labat," }, { "docid": "23580038", "title": "", "text": "juries from lists of qualified electors prevailing in Mississippi, a unanimous Supreme Court declared in Patton v. State of Mississippi, 1947, 332 U.S. 463, 469, 68 S.Ct. 184, 187, 92 L.Ed. 76; “* * •» When a jury selection plan, whatever it is, operates in such way as always to result in the complete and long-continued exclusion of any representative at all from a large group of Negroes, or any other racial group, indictments and verdicts returned against them by juries thus selected cannot stand.” In Eubanks v. State of Louisiana, 1958, 356 U.S. 584, 587, 78 S.Ct. 970, 973, 2 L.Ed.2d 991, again by a unanimous Court, the foregoing statement from the Patton case, supra, was quoted with approval, to which the Court added: “* * •» This is essentially the situation here. True, the judges now serving on the local court testified generally that they had not discriminated against Negroes in choosing grand juries, and had only tried to pick the best available jurors. But as Chief Justice Hughes said for the Court in Norris v. State of Alabama, 294 U.S. 587, 598, 55 S.Ct. 579, 584, 79 L.Ed. 1074, ‘If, in the presence of such testimony as defendant adduced, the mere general assertions by officials of their performance of duty were to be accepted as an adequate justification for the complete exclusion of negroes from jury service, the [Equal Protection Clause] — adopted with special reference to their protection— would be but a vain and illusory requirement. Compare Reece v. State of Georgia, 350 U.S. 85, 88, 76 S.Ct. 167, 169, 100 L.Ed. 77; Hernandez v. State of Texas, 347 U.S. 475, 481, 74 S.Ct. 667, 671, 98 L.Ed. 866.” It can no longer be doubted that proof of long-continued exclusion of Negroes from jury service makes a “strong prima facie case.” Norris v. State of Alabama, supra, 294 U.S. at page 598, 55 S.Ct. at page 584. In Hernandez v. State of Texas, 1954, 347 U.S. 475, 480, 74 S.Ct. 667, 671, the holding was that persons of Mexican descent were syste matically excluded from jury" }, { "docid": "23561576", "title": "", "text": "was too subjective to withstand scrutiny in the face of the long history of racial discrimination in the community and the failure of the public school system to desegregate in compliance with the mandate of Brown until forced to do so by litigation. In this background, the sudden disproportionate decimation in the ranks of the Negro teachers did raise an inference of discrimination which thrust upon the School Board the burden of justifying its conduct by clear and convincing evidence. Innumerable cases have clearly established the principle that under circumstances such as this where a history of racial discrimination exists, the burden of proof has been thrown upon the party having the power to produce the facts. In the field of jury discrimination see: Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935); State v. Lowry, 263 N.C. 536, 139 S.E.2d 870 (1965); State v. Wilson, 262 N.C. 419, 137 S.E.2d 109 (1964). The defendants’ reliance on Brooks v. School District of City of Moberly, Missouri, 267 F.2d 733 (8 Cir. 1959), is not well founded. In that case the School Board had promptly proceeded to desegregate following the Brown case. Furthermore, the facts showed that the School Board, prior to the end of the school year, carefully compared the qualifications of all the teachers, using previously established uniform standards. The procedure resulted in the failure to rehire both white and Negro teachers. The plaintiffs as a class are entitled to an order requiring the Board to set up definite objective standards for the employment and retention of teachers and to apply them to all teachers alike in a manner compatible with the requirements of the Due Process and Equal Protection Clauses of the Constitution. All of the plaintiffs who desire to teach in the Hendersonville School system and" }, { "docid": "14683758", "title": "", "text": "petit jurors were not selected from those lists, although the lists were later checked, as they had to be, in order to determine that the jurors selected were qualified electors. There is no assertion here of misproportion of negro jurors to negro taxpayers or negro electors or negro citizens. And there is nothing before us by way of claim of systematic negro exclusion on Garland County jury'lists for any period of time. Similarly, we fail to see where Whitus v. State of Georgia and subsequent rulings based on Whitus, namely, Bostick v. South Carolina, 386 U.S. 479, 87 S.Ct. 1088, 18 L.Ed.2d 223 (1967); Cobb v. Georgia, 389 U.S. 12, 88 S.Ct. 115, 19 L.Ed.2d 11 (1967); Jones v. Georgia, 389 U.S. 24, 88 S.Ct. 4, 19 L.Ed.2d 25 (1967); Sims v. Georgia, 389 U.S. 404, 407-408, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967); see Coleman v. Alabama, 389 U.S. 22, 88 S.Ct. 2, 19 L.Ed.2d 22 (1967), afford anything new or anything not fully discussed and fully decided on Maxwell’s prior habeas appeal. The Georgia jury lists, under attack in Whitus, were made up from a racially designated tax digest and by reference to the old jury list theretofore condemned in Whitus v. Balkcom, 333 F.2d 496 (5 Cir. 1964), cert. denied 379 U.S. 931, 85 S.Ct. 329, 13 L.Ed.2d 343. And again there was serious disproportion of negro representation. The Court quite ex-pectedly held that such proof constituted a prima facie case of purposeful discrimination, for the fact situation fell in line with that in Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953), cited by the Supreme Court and also by us on the first appeal, p. 332 of 348 F.2d. A construction, for Maxwell’s case, of footnote material similar to that found in Jones v. Georgia, supra, at p. 25 of 389 U.S., 88 S.Ct. 4, would be constrastingly revealing. In Maxwell’s case, we repeat, we have no question whatsoever of inappropriate negro representation on the Garland County jury list, we have a negro commissioner, and we have jury lists" }, { "docid": "23315801", "title": "", "text": "voter was affected. On that approach, it is not Negroes alone who suffer, it is the body politic as a whole, both Negro and white. And this is certainly true at least to the extent that the trial Court legally could not assume — as it evidently did — -that all white voters would vote for white candidates, all Negroes for Negroes, or that no whites would vote for Negroes in a free, untainted election. See Hamer v. Campbell, supra, 358 F.2d 215, 219. As long as we bear carefully in mind the limitations that Hamer imposes on this stringent relief, we think it is a mistake to cast this in terms of presumption. The fact is that there are certain discriminatory practices which, apart from demonstrated injury or the inability to do so, so infect the processes of the law as to be stricken down as invalid. Virginia State Bd. of Elections v. Hamm, 1964, 379 U.S. 19, 85 S.Ct. 157, 13 L.Ed.2d 91, affirming, 1964, 230 F.Supp. 156. Thus in jury-race exclusion cases, once the evidence, either direct or by inference from statistical percentages, cf. Swain v. State of Alabama, 1965, 380 U.S. 202, 205, 85 S.Ct. 824, 827, 13 L.Ed.2d 759, 764; Whitus v. State of Georgia, 1967, 385 U.S. 545, 552 & n.2, 87 S.Ct. 643, 647, 17 L.Ed.2d 599, 605, establishes the existence of racial discrimination, the law requires that the indictment (or the petit jury verdict of guilty) be set side even though the accused is unable to demonstrate injury in fact. Labat v. Bennett, 5 Cir., 1966 (en banc), 365 F.2d 698, 723 & n.43. And at times demonstrated actual discrimination is not even required if the racially conscious system affords a ready opportunity for it in practice. Avery v. State of Georgia, 1953, 345 U.S. 559, 73 S.Ct. 891, 73 L.Ed. 1244; Williams v. State of Georgia, 1955, 349 U.S. 375, 75 S.Ct. 814, 99 L.Ed. 1161; Whitus v. State of Georgia, 1967, 385 U.S. 545, 87 S.Ct. 643, 17 L.Ed.2d 599. Of course the Court discharging an accused from such indictment" }, { "docid": "23456813", "title": "", "text": "outcome of this kind of lapse, it must be explained on some basis other than an interest in allowing a defendant to follow what seems to him his most advantageous course of action.” Reitz, Federal Habeas Corpus: Impact of an Abortive State Proceeding, 74 Harv.L.Rev. 1266, 1333, 1336 (1961). . This is the term Mr. Justice Brennan used in Fay v. Noia, 372 U.S. 391, 440, 83 S.Ct. 822, 9 L.Ed.2d 837, to describe Noia’s predicament. . The exclusion of Negroes from petit juries trying Negro defendants has been repeatedly held to violate the equal protection clause as well as the due process clause of the Fourteenth Amendment. Reece v. State of Georgia, 1955, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 17; Patton v. State of Mississippi, 1947, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Norris v. State of Alabama, 1935, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Carter v. State of Texas, 1900, 177 U.S. 442, 20 S.Ct. 687, 44 L.Ed. 839; United States ex rel. Goldsby v. Harpole, 5 Cir., 1959, 263 F.2d 71, cert. den’d 1959, 361 U.S. 838, 80 S.Ct. 58, 4 L.Ed.2d 78. . We have based our decision on Fay v. Noia, 372 U.S. 391, 83 S.Ct. 822, 9 L.Ed.2d 837. At the same time, we have considered, as Mr. Justice Harlan would require the Court to consider, “the adequacy, or fairness, of the state ground”. . Mr. Walter Jones, attorney for Whitus, testified that he “had a conference with the other attorneys in the case and we agreed that [if a request for a change were- made and acted on favorably] the trial judge might change it to Baker County and we were better off in Mitchell.” . The two other defendants pleaded guilty and were sentenced to life imprisonment. One was sixteen years of age. The other testified for the State. . Whitus v. State, 1960, 216 Ga. 284, 116 S.E.2d, 205; cert. den’d 1961, 365 U.S. 831, 81 S.Ct. 718, 5 L.Ed.2d 708; Davis v. State, 1960, 216 Ga. 110, 114 S.E.2d 877. . The district" }, { "docid": "17475144", "title": "", "text": "100 U.S. 303, 25 L.Ed. 664. While the party alleging systematic exclusion bears the initial burden of establishing a prima facie case of discriminatory jury selection, a prima facie case is established when it is demonstrated that a significant disparity exists between the percentage of blacks chosen for jury duty and the percentage of blacks eligible for jury duty in the population from which jurors are drawn. Hernandez v. Texas, 1954, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 886; Patton v. Mississippi, 1947, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76. Further, neither proof of complete exclusion of blacks from the jury rolls, Whitus v. Georgia, supra, nor proof of specific acts of discrimination, Avery v. Georgia, supra, is required to establish a prima facie case of jury discrimination. This Court has repeatedly held that “long continuing” and “decided variations” between the racial proportions on jury lists and the racial proportions in the population shift the burden to the state to furnish a constitutionally acceptable explanation for such disparities. Labat v. Bennett, 5 Cir. 1966, 365 F.2d 698, cert. denied 1966, 386 U.S. 991, 87 S.Ct. 1303, 18 L.Ed.2d 334; Davis v. Davis, 5 Cir. 1966, 361 F.2d 770; Scott v. Walker, 5 Cir. 1966, 358 F.2d 561; United States ex rel. Seals v. Wiman, 5 Cir. 1962, 304 F.2d 53, cert. denied 1963, 372 U.S. 924, 83 S.Ct. 741, 9 L.Ed.2d 729. Appellant, in presenting his motion to quash, and Kilbourne in attempting proof of his motion to quash, sought to establish discriminatory jury exclusion by demonstrating through the use of direct testimony a significant discrepancy between the percentage of blacks in the general population and the percentage of blacks appearing on the general venire. The state trial court, however, denied appellant the opportunity to present evidence in support of his substantial constitutional claim. The state court did so under the erroneous assumption that evidence of intentional discrimination in jury selection is required to support a claim of racially unconstitutional jury composition. Avery v. Georgia, supra. Under this assumption, the state court cut short appellant’s offer of" }, { "docid": "23561575", "title": "", "text": "put to such a test. In Franklin v. County School Board of Giles County, 242 F.Supp. 371 (W.D.Va. 1965), reversed as to remedy, 360 F.2d 325 (4 Cir. 1966), which involved the closing of a Negro school and the subsequent failure to re-employ the Negro teachers under circumstances very similar to this case, the court said: “In view of the pre-existing policy, [a policy of treating all the teachers in the school district as a homogeneous faculty so that when a school was closed, its teachers were retained on an equal basis with all the other teachers in the system.] I believe that the Superintendent’s stated policy with regard to these plaintiffs, i. e., to evaluate their right to continued employment in terms of the vacancies then existing in the other schools in the system rather than by comparison of their effectiveness with the other teachers in the system was too restrictive and its use in this particular instance resulted in a discrimination against these individuals.” (Emphasis in original.) At 374. Finally, the test itself was too subjective to withstand scrutiny in the face of the long history of racial discrimination in the community and the failure of the public school system to desegregate in compliance with the mandate of Brown until forced to do so by litigation. In this background, the sudden disproportionate decimation in the ranks of the Negro teachers did raise an inference of discrimination which thrust upon the School Board the burden of justifying its conduct by clear and convincing evidence. Innumerable cases have clearly established the principle that under circumstances such as this where a history of racial discrimination exists, the burden of proof has been thrown upon the party having the power to produce the facts. In the field of jury discrimination see: Eubanks v. State of Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991 (1958); Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77 (1955); Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244 (1953); Norris v. State of Alabama, 294" }, { "docid": "115883", "title": "", "text": "the ^ box ^ the defendants. This proof, without more, requires an inference of systematic exelusion on racial grounds; this inference, in the absence of some satisfactory explanation, is sufficient to show that the plaintiffs have been denied the constitutional rights they assert. Norris v. State of Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Patton v. State of Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76; Reece v. State of Georgia, 350 U.S. 85, 76 S.Ct. 167, 100 L.Ed. 77; Hernandez v. State of Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866; Brown v. Allen, 344 U.S. 443, 73 S.Ct. 397, 97 L.Ed. 469; United States ex rel. Seals v. Wiman, 5 Cir., 304 F.2d 53; United States ex rel. Goldsby v. Harpole, 5 Cir., 263 F.2d 71. This Court recognizes that there can be no precise formula for determining when there has been an adequate number as opposed to a token number of names of qualified Negro citizens on the jury roll and in the jury box, but from the evidence in this case it is clear that the jury commissioners in Macon County, Alabama, have failed to discharge the clear, affirmative duty that rests upon them and the other public officials charged with seeing that there is a nonracial jury selection. This affirmative duty has been expressed by the Supreme Court of the United States in Avery v. State of Georgia, 345 U.S. 559, 73 S.Ct. 891, 97 L.Ed. 1244, as follows: “The Jury Commissioners, and the other officials responsible for the selection of this panel, were under a constitutional duty to follow a procedure — ‘a course of conduct’— which would not ‘operate to discriminate in the selection of jurors on racial grounds.’ Hill v. State of Texas, 316 U.S. 400, 404, 62 S.Ct. 1159, 1161, 86 L.Ed. 1559 (1942).” The defendants in this case have made no valid explanation concerning why almost all eligible whites in Macon County, Alabama, have their names on the jury roll and in the jury box, but only one out of approximately every twelve" } ]

[ { "docid": "22125003", "title": "", "text": "any complaint procedure provided by the employer, a demonstration of such failure will normally suffice to satisfy the employer’s burden under the second element of the defense. Ellerth, 118 S.Ct. at 2270. In sum, we today modify our standard for proving a prima facie case of Title VII retaliation. A plaintiff must now prove that: (1) she engaged in activity protected by Title VII; (2) this exercise of protected rights was known to defendant; (3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. See Canitia v. Yellow Freight Sys., Inc., 903 F.2d 1064, 1066 (6th Cir.), cert. denied, 498 U.S. 984, 111 S.Ct. 516, 112 L.Ed.2d 528 (1990) (outlining previous standard for prima facie Title VII retaliatory harassment case). If and when a plaintiff has established a prima facie case, the burden of production of evidence shifts to the employer to “articulate some legitimate, nondiscriminatory reason” for its actions. Ibid, (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The plaintiff, who bears the burden of persuasion throughout the entire process, then must demonstrate “that the proffered reason was not the true reason for the employment decision.” Ibid, (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The employer may also prove an affirmative defense to retaliatory harassment by a supervisor by demonstrating: “(a) that the employer exercised reasonable care to prevent and correct promptly any ... harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer to avoid harm otherwise.” Ellerth, 118 S.Ct. at 2270. Applying this new standard to the instant case, we first hold that a reasonable juror could conclude that Likins’s behavior after the lodging of Morris’s complaint constituted severe or pervasive retaliatory harassment. Assuming plaintiffs version of the facts, Likins (1)" } ]

[ { "docid": "20126608", "title": "", "text": "prima facie showing ‘that he engaged in protected activity, that the employer took adverse action against him, and that the adverse action was causally connected to the plaintiffs protected activity.’ ” Id. at 551 (quoting Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th Cir.1998)). If an employee establishes a prima facie case, the burden then shifts to the employer to offer a “nondiscriminatory explanation” for the adverse action taken. Id. But once such a legitimate, non-discriminatory explanation has been offered, the burden shifts back to the employee, who “bears the burden of establishing that the employer’s proffered explanation is pretext for FMLA retaliation.” Nichols v. Ashland Hosp. Corp., 251 F.3d 496, 502 (4th Cir.2001). 1. Prima Facie Case The parties agree that the sole disputed element of Campbell’s prima facie case is the causative link between the exercise of his FMLA rights and his subsequent termination. (Def.’s Br. at 8; PL’s Opp’n at 6-7.) Although not clearly articulated by Campbell, proximity in time between the two events is the sole fact giving rise to a reasonable inference of causation. Alone, the fact may not be conclusive on the merits. However, Campbell’s burden at this stage is not a heavy one, and so temporal proximity, alone, is sufficient to establish a causal link for purposes of establishing his prima facie case. In resolving a motion for summary judgment, the non-movant benefits from all favorable inferences. Brinkley v. Harbour Rec. Club, 180 F.3d 598, 619 (4th Cir.1999) (citations omitted). It is well recognized in the Fourth Circuit, the appellate authority governing this Court, that temporal proximity between an employee’s use of FMLA leave and subsequent termination gives rise to a reasonable inference of causation. “While evidence as to the closeness in time ‘far from conclusively establishes the requisite causal connection, it certainly satisfies the less onerous burden of making a prima facie case of causality.’ ” Yashenko, 446 F.3d at 551 (quoting Williams v. Cerberonics, Inc., 871 F.2d 452, 457 (4th Cir.1989)); but see Hoskins v. Pridgeon & Clay, Inc., No. 1:05cv816, 2007 WL 1031636, at *9, 2007 U.S. Dist." }, { "docid": "23344226", "title": "", "text": "450 U.S. at 252-53, 101 S.Ct. 1089; DiCarlo, 358 F.3d at 414. 1. Prima facie case To make out a prima facie case of retaliation, Upshaw “must establish that: (1) she engaged in Title VII-protected activity; (2) [Ford] knew that she engaged in the protected activity; (3) [Ford] subsequently took an adverse employment action against [her]; and (4) the adverse action was causally connected to the protected activity.” See Ladd v. Grand Trunk W. R.R., Inc., 552 F.3d 495, 502 (6th Cir.2009). The parties dispute only the fourth element — whether Upshaw established a causal connection between her various EEOC charges and Ford’s decision to terminate her. To establish a causal connection, a plaintiff must “ ‘proffer evidence sufficient to raise the inference that her protected activity was the likely reason for the adverse action.’ ” EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997) (quoting Zanders v. Nat’l R.R. Passenger Corp., 898 F.2d 1127, 1135 (6th Cir.1990) (citations omitted)); see also Abbott v. Crown Motor Co., Inc., 348 F.3d 537, 543 (6th Cir.2003) (“[T]he plaintiff must produce sufficient evidence from which one could draw an inference that the employer would not have taken the adverse action against the plaintiff had the plaintiff not engaged in activity that Title VII protects.”). The burden of proof at the prima facie stage is “minimal”; all the plaintiff must do is put forth some credible evidence that enables the court to deduce that there is a causal connection between the protected activity and the retaliatory action. Avery, 104 F.3d at 861 (“Further, to establish the element of causal link, a plaintiff is required to proffer evidence sufficient to raise the inference that her protected activity was the likely reason for the adverse action.”) (internal citations and quotation marks omitted). The district court determined that Upshaw met her burden of establishing a prima facie case based on the close temporal proximity between her EEOC filings and her termination: While Upshaw’s termination came almost 19 months after her initial EEOC charge, Upshaw made two additional charges and filed her lawsuit only four months" }, { "docid": "4847344", "title": "", "text": "and (5) the requirement that Plaintiff have certain professional licenses that other employees were not required to maintain. The record is not clear as to when most of these specific instances of alleged retaliation occurred relative to when Plaintiff engaged in protected activity. The Court finds, however, that Plaintiff alleges at least some conduct that may constitute retaliatory action that occurred after Plaintiffs protected complaints. A factual dispute therefore exists as to whether the Plaintiff was, in addition to his termination, subjected to objectively adverse, retaliatory actions. (2) Causal Connection To establish a causal connection between the protected activity and the adverse action, a plaintiff must “proffer evidence sufficient to raise the inference that [his] protected activity was the likely reason for the adverse action.” Dixon v. Gonzales, 481 F.3d 324, 333 (6th Cir.2007) (citations and internal quotation marks omitted). In general, “mere temporal proximity between an assertion of Title VII rights and a materially adverse action without other indicia of retaliatory conduct is not sufficient to establish the causal connection element of a retaliation claim.” Evans v. Prospect Airport Servs., Inc., 286 Fed.Appx. 889, 895 (6th Cir.2008) (citations omitted). The Sixth Circuit has clarified, however, that in certain cases, temporal proximity alone may be sufficient to establish the causation element: Where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. But where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality. Id. (citing Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 525 (6th Cir.2008)). Here, Plaintiff alleges that he suffered adverse employment actions following his protected activities. Although the exact temporal proximity of the adverse actions to the protected activities is not clear from the record, there is evidence that the timing of the alleged retaliation was close" }, { "docid": "23485764", "title": "", "text": "action under Title VII, the plaintiff may prove unlawful retaliation by presenting direct evidence of such retaliation or by establishing a prima facie case under the McDonnell Douglas framework. See Swierkiewicz v. Sorema, 534 U.S. 506, 511, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002); Laderach v. U-Haul of Northwestern Ohio, 207 F.3d 825, 829 (6th Cir.2000). Direct evidence is that evidence which, if believed, requires the conclusion that unlawful retaliation was a motivating factor in the employer’s action. See Laderach, 207 F.3d at 829. “[D]irect evidence proves the existence of a fact without any inferences or presumptions.” Norbuta v. Loctite Corp., 181 F.3d 102 (6th Cir.1999). Here, plaintiffs tendered evidence is not direct because, even if it were believed, it would not require the conclusion that defendant unlawfully retaliated against plaintiff; rather, one could draw that conclusion only by making a series of inferences arising from plaintiffs evidence. Consequently, plaintiff must establish a prima facie case of unlawful retaliation for his Title VTI action to lie. To establish a prima facie case of unlawful retaliation under Title VII, the plaintiff must demonstrate by a preponderance of the evidence that: 1) he engaged in activity that Title VII protects; 2) defendant knew that he engaged in this protected activity; 3) the defendant subsequently took an employment action adverse to the plaintiff; and 4) a causal connection between the protected activity and the adverse employment action exists. Strouss v. Michigan Dep’t of Corr., 250 F.3d 336, 342 (6th Cir.2001); Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). “The burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met.” Nguyen, 229 F.3d at 563; see also EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997) (Establishing a prima facie case entails a lower burden of proof than that which is required to win a judgment on the merits.). “After proving the existence of a prima facie case, the burden [of production] shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action.” Nguyen, 229 F.3d at 562." }, { "docid": "13749887", "title": "", "text": "injection of race in any of Russell’s hostile work environment complaints is found in the plaintiffs assertions that fellow employees indicated that Russell must have obtained her job through affirmative action initiatives. Those isolated comments, however, were uttered many years prior to the plaintiffs termination and were neither so pervasive nor so severe as to “amount to discriminatory changes in the terms or conditions of employment.” See Bowman v. Shawnee State Univ., 220 F.3d 456, 463 (6th Cir.2000). Viewed singularly or collectively, the complaints voiced by Russell reflect more on the plaintiffs work habits and on staffing concerns at the Student Medical Center than on any racial animosity- Retaliation for Protected Conduct The plaintiff next asserts that the defendants improperly retaliated against her for two protected activities: filing racial discrimination claims with the EEOC and speaking at a rally concerned with the university’s handling of diversity issues. To establish a prim a facie claim of Title VII retaliation, a plaintiff must show that: (1) she engaged in activity protected by Title VII; (2) this exercise of protected rights was known to the defendant; (3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000) (emphasis in original removed). The burden of establishing a prima facie case is not an onerous one and is easily satisfied. See Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). Once the prima facie case is established, the burden of production then shifts to the employer who must articulate a legitimate, nondiscriminatory reason for its actions. See Morris, 201 F.3d at 793. “The plaintiff, who bears the burden of persuasion throughout the entire process, then must demonstrate that the proffered reason was not the true reason for the employment decision.” Id. (citations and internal quotation marks omitted). Despite the relative ease with which a prima facie case can be established," }, { "docid": "22999375", "title": "", "text": "828, 833 (6th Cir.1999). Applying the expected scope of investigation test, we conclude that Weigel’s retaliation claim should be allowed to go forward. The facts supporting Weigel’s retaliation claim emerged from the nondiscriminatory explanation advanced by BHET for its refusal to rehire her. Since the employer’s articulation of its nondiscriminatory reasons for taking a challenged adverse employment action is an essential step in any discrimination investigation, this claim clearly seems to be within the scope of any EEOC investigation expected to grow out of Weigel’s discriminatory hiring claim. Moreover, Weigel’s EEOC charge included facts relating both to BHET’s refusal to rehire Weigel and to the allegedly discriminatory treatment she received while previously employed at BHET. It seems logical that any investigation resulting from Weigel’s EEOC charge would explore whether there was a relationship between her earlier complaints of discrimination and her subsequent claims of discriminatory hiring. 2. Circumstantial Case of Retaliation We next turn to the merits of Weigel’s retaliation claim. In the absence of direct evidence, retaliation claims are governed by the McDonnell Douglas burden-shifting framework. Christopher v. Stouder Mem’l Hosp., 936 F.2d 870, 877 (6th Cir.), cert. denied, 502 U.S. 1013, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991). In order to establish a prima facie case of retaliation, the plaintiff must show: (1) that the plaintiff engaged in a protected activity; (2) that the defendant had knowledge of the plaintiffs protected conduct; (3) that the defendant took an adverse employment action towards the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. Id. “The burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). The parties do not dispute that Weigel has shown the first three elements of her claim. The only dispute is whether Weigel has shown causation. To show causation, “a plaintiff must produce sufficient evidence from which an inference could be drawn that the adverse action would not have been taken” in the absence of the protected" }, { "docid": "13749888", "title": "", "text": "of protected rights was known to the defendant; (3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000) (emphasis in original removed). The burden of establishing a prima facie case is not an onerous one and is easily satisfied. See Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). Once the prima facie case is established, the burden of production then shifts to the employer who must articulate a legitimate, nondiscriminatory reason for its actions. See Morris, 201 F.3d at 793. “The plaintiff, who bears the burden of persuasion throughout the entire process, then must demonstrate that the proffered reason was not the true reason for the employment decision.” Id. (citations and internal quotation marks omitted). Despite the relative ease with which a prima facie case can be established, the magistrate judge and the district judge concurred in this matter that Russell failed to prove that the defendants were aware of the plaintiffs presence at a public rally or that there was a causal connection between either the rally participation and the termination or the EEOC filings and the termination. Indeed, Russell offered no evidence that the defendants were aware of her February 18, 2005, speech at the rally other than her assertion that the function was publicized and covered by the press. As noted by the defendants, however, the press release concerning the rally never mentioned Russell by name or otherwise alluded to her participation. The defendants were, nevertheless, clearly aware that Russell had filed charges with the EEOC in September 2004. Indeed, at a meeting held during that month, MeElfresh explicitly stated that his office was in charge of coordinating the defendants’ response to the allegations of discrimination made by he plaintiff. He further cautioned Dr. Weiss and Dr. Mills “to be very clear on their instructions to [the plaintiff]. If she" }, { "docid": "15918888", "title": "", "text": "of sexual harassment; the second is that she suffered retaliation from her coworkers. 1. Satterfield’s Claim for Retaliatory Discharge To establish a prima facie case of retaliation, Satterfield must show that: 1) she engaged in activity protected by Title VII; 2) this exercise of protected rights was known to defendant; 3) defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and 4) there was a causal connection between the protected activity and the adverse employment action or retaliation. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000) (emphasis omitted). If Satterfield establishes this prima facie case, the burden of production shifts to the Sheriff to “articulate some legitimate, nondiscriminatory reason” for his actions. Id. at 792-93 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). If the Sheriff produces such evidence, then Satterfield, who bears the burden of persuasion throughout the entire process, must demonstrate, “that the proffered reason was not the true reason for the employment decision.” Id. at 793 (quoting Texas Dep’t of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)). The Sheriff challenges Satterfield’s ability to establish the fourth element of her prima facie case: that there was a causal connection between the protected activity and the adverse employment action or retaliation. He also argues that there is no evidence on which a reasonable jury could base a finding that the Sheriffs legitimate, nondiscriminatory reason for his actions was merely a pretext. As for the causal connection, without direct evidence of such a connection, “a plaintiff must produce sufficient evidence from which an interference could be drawn that the adverse action would not have been taken” in the absence of Satterfield’s complaint of harassment. Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). “[N]o one factor is dispositive in establishing a causal connection .... ” Id. “The burden of establishing a prima facie case in a retaliation action is not onerous, but one" }, { "docid": "16285319", "title": "", "text": "“is significant enough to constitute sufficient evidence of a causal connection for the purpose of satisfying [the plaintiffs] burden of demonstrating a prima facie [retaliation] case.”); Goller v. Ohio Dep’t of Rehab. & Corr, 285 Fed.Appx. 250, 257 (6th Cir. 2008) (citing Mickey and Singfield to hold that a two-month temporal period between the protected activity and employee’s termination is sufficient to establish a causal connection for the purposes of establishing a prima facie retaliation case); Vaughn v. Louisville Water Co., 302 Fed.Appx. 337, 349-50 (6th Cir.2008) (assuming without deciding that the four-month temporal proximity between the protected activity and the materially adverse action is sufficient to create a causal connection, but affirming the granting of summary judgment to the defendant because it established a legitimate, non-discriminatory reason for the materially adverse action, and the plaintiff failed to show the defendant’s proffered reason was pretextual). Here, Sanford alleges that he complained to Manor Board members Ward and Cornelius about Carter’s actions in June or July 2004, and again to the entire Board on or near August 16, 2004. Moreover, Sanford told Ward in October 2004 that he wanted to file a complaint based on Carter’s actions, and Ward explicitly directed Sanford not to make a formal complaint. Sanford’s October 2004 complaint to Ward constitutes a protected activity. See Johnson v. Univ. of Cincinnati, 215 F.3d 561, 579 (6th Cir.2000) (“complaining to anyone ... about allegedly unlawful practices” is a protected activity.) Ward notified Sanford in December 2004 of the removal of all of Sanford’s courtesy duties, which resulted in a 75% loss in Sanford’s pay and constituted an adverse employment action. Therefore, in light of Johnson, Mickey, and Singfield, we hold this two-month temporal proximity, along with the other incidents discussed above, taken together, are significant enough under the circumstances of this case to constitute a genuine issue of material fact as to the element of causation. b. Legitimate, Ncnv-Discriminatory Reason for Adverse Employment Action Defendants asserted that its decision to eliminate Sanford’s courtesy duties was based on the fact that the overnight courtesy work was tied to occupancy of" }, { "docid": "11754577", "title": "", "text": "Verdict on her Retaliation Claim To establish a prima facie claim of retaliation, a plaintiff must show that: (1) she engaged in a protected activity; (2) this exercise of protected rights was known to the defendant; (3) the defendant thereafter took adverse employment action against the plaintiff, or the plaintiff was subjected to severe or pervasive retaliatory harassment by a supervisor; and (4) there was a causal connection between the protected activity and the adverse employment action or harassment. Morris v. Oldham County Fiscal Court, 201 F.3d 784, 792 (6th Cir.2000) (citations omitted). If and when a plaintiff has established a prima facie case, the burden of production of evidence shifts to the employer to articulate a legitimate, non-discriminatory reason for its actions. Id. at 793 (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). The plaintiff then must demonstrate that “the proffered reason was not the true reason for the employment decision.” Id. (citation omitted). The only argument Metro raised during the trial in its oral motion for JMOL as to Tuttle’s retaliation claim was that she failed to submit evidence on the element that there was a causal connection between her filing of an .EEOC charge against Metro on December 6, 2001 and her termination, which took effect on March 4, 2002. The law is clear that temporal proximity, standing alone, is insufficient to establish a causal connection for a retaliation claim. Little v. BP Exploration & Oil Co., 265 F.3d 357, 363-64 (6th Cir.2001); Nguyen v. City of Cleveland, 229 F.3d 559, 566 (6th Cir.2000). There are, however, circumstances where temporal proximity, considered with other evidence of retaliatory conduct would be sufficient to establish a causal connection. See, e.g., Moore v. KUKA Welding Sys., 171 F.3d 1073 (6th Cir.1999). In Moore, we determined that “[t]he causal connection between the adverse employment action and the protected activity, here the filing of a complaint with the EEOC, may be established by demonstrating that the adverse action was taken shortly after plaintiff filed the complaint and by showing that he was treated" }, { "docid": "19138003", "title": "", "text": "discrimination “against any individual because such individual has opposed any act or practice made unlawful by [the ADA] or because such individual made a charge ... under [the ADA].” 42 U.S.C. § 12203(a). A plaintiff may prove retaliation claims using the McDonnell Douglas burden-shifting framework: The plaintiff bears the initial burden of proving a prima face case, then the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for its actions, and finally the burden shifts back to the plaintiff to prove that the defendant’s proffered reason is pretext for discrimination. See Penny v. United Parcel Serv., 128 F.3d 408, 417 (6th Cir.1997). To establish a prima facie case of retaliation, a plaintiff must show that (1) she engaged in protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between the protected activity and the adverse employment action. Harris’s EEOC charge filed on April 23, 2009 was “protected activity,” see 42 U.S.C. § 12203(a), and her subsequent poor performance reviews and termination were adverse employment actions. The EEOC has also provided evidence of a causal connection between the EEOC charge and Harris’s poor reviews and termination. Because approximately four months passed between the EEOC charge and Harris’s termination, temporal proximity alone does not establish causation in this case. See Mickey v. Zeidler Tool & Die Co., 516 F.3d 516, 525 (6th Cir.2008) (reasoning that temporal proximity alone was sufficient to establish causation when an employer terminated an employee on the same day that he learned of the employee’s EEOC complaint). However, a plaintiff can prove causation when she can “couple temporal proximity with any ... other evidence of retaliation.” Id. at 525. A relatively short period of time elapsed between Harris’s EEOC charge in late April and her ultimate termination in early September, and the EEOC has presented evidence that other retaliatory conduct also occurred during this period. For example, after Harris filed her EEOC charge, her immediate supervisor began conducting intimidating one-on-one meetings with her and held a meeting with all of her coworkers to discuss her attendance problems. R." }, { "docid": "22999376", "title": "", "text": "burden-shifting framework. Christopher v. Stouder Mem’l Hosp., 936 F.2d 870, 877 (6th Cir.), cert. denied, 502 U.S. 1013, 112 S.Ct. 658, 116 L.Ed.2d 749 (1991). In order to establish a prima facie case of retaliation, the plaintiff must show: (1) that the plaintiff engaged in a protected activity; (2) that the defendant had knowledge of the plaintiffs protected conduct; (3) that the defendant took an adverse employment action towards the plaintiff; and (4) that there was a causal connection between the protected activity and the adverse employment action. Id. “The burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). The parties do not dispute that Weigel has shown the first three elements of her claim. The only dispute is whether Weigel has shown causation. To show causation, “a plaintiff must produce sufficient evidence from which an inference could be drawn that the adverse action would not have been taken” in the absence of the protected conduct. Id. Although no one consideration is dispositive, “[a] causal link may be shown through knowledge combined with closeness in time.” Johnson v. Univ. of Cincinnati, 215 F.3d 561, 582 (6th Cir.2000). Based upon these principles, we conclude that the district court erred in finding that Weigel had failed to establish a prima facie case of causation. The record shows that the decision to reject Weigel’s application was made shortly after the key decision makers became aware of Weigel’s previous complaints about age discrimination as a result of their review of Weigel’s personnel file. Moreover, both Bowers and Herrin identified the nature of Weigel’s comments on the exit questionnaire, some of which related to age discrimination, as a factor influencing their decision. Thus, in addition to temporal connection and knowledge, the plaintiff has shown that the decision makers specifically considered the exit questionnaire, which contained complaints about discrimination, in reaching their decision. These facts are sufficient to establish a prima facie case of causation. We nevertheless determine that BHET is entitled to summary judgment on" }, { "docid": "23218460", "title": "", "text": "elements without dispute. The fourth element is more difficult. To prove a causal connection, Singfield must produce sufficient evidence from which an inference can be drawn that the Housing Authority took the adverse employment action because Singfield filed a discrimination charge. EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997) (citations omitted). “Although no one factor is dispositive in establishing a causal connection, evidence ... that the adverse action was taken shortly after the plaintiffs exercise of protected rights is relevant to causation.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000); see also Oliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir.1988) (employee’s discharge “soon after” engaging in protected activity “is indirect proof of a causal connection between the firing and the activity because it is strongly suggestive of retaliation.”); Miller v. Fairchild Indus., Inc., 797 F.2d 727 (9th Cir.1986) (“Causation sufficient to establish a prima facie case of unlawful retaliation may be inferred from the proximity in time between the protected action and the allegedly retaliatory discharge.”). Singfield submits that he was terminated on January 25, 2002, just over three months after he filed a discrimination charge with the employment commission. He argues that from such temporal proximity we should infer a retaliatory motive. We agree, and conclude that the temporal proximity of these events is significant enough to constitute sufficient evidence of a causal connection for the purpose of satisfying Singfield’s burden of demonstrating a prima facie case. See Hochstadt v. Worcester Found. for Experimental Biology, Inc., 425 F.Supp. 318, 324-25 (D.Mass.), aff'd 545 F.2d 222 (1st Cir.1976) (to establish a prima facie case, plaintiff must show that her discharge followed her protected activities within such period of time that the court can infer retaliatory motive; plaintiffs discharge six months after EEOC settlement satisfies the causation requirement). Because Singfield establishes the prima facie case, the burden of production shifts to the Housing Authority to articulate a legitimate, non-retaliatory explanation for the action. Wrighten v. Metro. Hosps., Inc., 726 F.2d 1346, 1354 (9th Cir.1984). To satisfy this burden, the Housing Authority “need" }, { "docid": "22206623", "title": "", "text": "the adverse action was causally related to the protected expression. See Stewart, 117 F.3d at 1287 (citing Goldsmith v. City of Atmore, 996 F.2d 1155, 1163 (11th Cir. 1993)). Once a prima facie case has been established, the employer has the burden of articulating a legitimate nondiserimina-tory reason for the challenged employment decision. See Stewart, 117 F.3d at 1287. The plaintiff then must “demonstrate that it will be able to establish at trial that the employer’s proffered non-discriminatory reasons are a pretextual ruse designed to mask retaliation.” Id. In this case, the trial court granted summary judgment because Farley had failed to show a causal nexus between his termination and his EEOC complaint. We disagree and conclude that Farley established a prima facie case of retaliation. Moreover, after reviewing the record, we find that Farley demonstrated sufficient evidence from which a jury could conclude that Nationwide’s proffered reason for dis charge (poor work performance) was a pretext for retaliation. Accordingly, we reverse the magistrate court’s grant of summary judgment. To begin, both sides agree that Farley satisfied the first two elements of a prima facie case; namely, that he engaged in statutorily protected expression and suffered an adverse employment decision. Soon thereafter, Farley filed a discrimination claim with the EEOC on May 19, 1995. Farley was terminated by Nationwide on July 10,1995. The trial court determined, however, that Farley failed to establish a causal nexus between these two events. We disagree. To prove a causal connection, we require a plaintiff only to demonstrate “ ‘that the protected activity and the adverse action were not wholly unrelated.’ ” Clover v. Total System Services, 176 F.3d 1346, 1354 (11th Cir.1999) (emphasis added) (quoting Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.1985)). We have plainly held that a plaintiff satisfies this element if he provides sufficient evidence that the decision-maker became aware of the protected conduct, and that there was close temporal proximity between this awareness and the adverse employment action. See Clover, 176 F.3d at 1354 (citing Goldsmith, 996 F.2d at 1163-64). Here, there is no dispute" }, { "docid": "23317602", "title": "", "text": "that: (1) he engaged in an activity protected by Title VII; (2) the defendant knew he engaged in this protected activity; (3) thereafter, the defendant took an employment action adverse to him; and (4) there was a causal connection between the protected activity and the adverse employment action. DiCarlo v. Potter, 358 F.3d 408, 420 (6th Cir.2004) (citation omitted). Smith’s complaint satisfies the first two requirements by explaining how he sought legal counsel after learning of the Salem executive body’s April 18, 2001 meeting concerning his employment; how his attorney contacted Defendant DeJane to advise Defendants of Smith’s representation; and how Smith filed a complaint with the EEOC concerning Defendants’ meeting and intended actions. With respect to the fourth requirement, a causal connection between the protected activity and the adverse employment action, “[although no one factor is dispositive in establishing a causal connection, evidence ... that the adverse action was taken shortly after the plaintiffs exercise of protected rights is relevant to causation.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000); see also Oliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir.1988) (employee’s discharge “soon after” engaging in protected activity “is indirect proof of a causal connection between tbe firing and the activity because it is strongly suggestive of retaliation.”); Miller v. Fairchild Indus., Inc., 797 F.2d 727, 731 (9th Cir.1986) (“Causation sufficient to establish a prima facie case of unlawful retaliation may be inferred from the proximity in time between the protected action and the allegedly retaliatory discharge.”). Here, Smith was suspended on April 26, 2001, just days after he engaged in protected activity by receiving his “right to sue” letter from the EEOC, which occurred four days before the suspension, and by his attorney contacting Mayor DeJane, which occurred six days before the suspension. The temporal proximity between the events is significant enough to constitute direct evidence of a causal connection for the purpose of satisfying Smith’s burden of demonstrating a prima facie case. We turn now to examining whether Smith properly alleged a claim of sex stereotyping, in violation of the Supreme" }, { "docid": "16285318", "title": "", "text": "significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. But where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality. Id. at 525. However, the Sixth Circuit has not established a black letter rule regarding the role of temporal proximity in establishing the causation prong of a prima facie retaliation case. This is demonstrated by Mickey, 516 F.3d at 524, wherein the court indicated its holding in a prior case, Cooper v. City of North Olmsted, 795 F.2d 1265, 1272 (6th Cir.1986), that a temporal proximity of four months was insufficient to establish an inference of retaliation, “does not preclude plaintiffs from ever using a temporal proximity closer than four months to establish an inference of retaliation.” See also Singfield v. Akron Metro. Hous. Autk, 389 F.3d 555, 556 (6th Cir. 2004) (concluding that temporal proximity alone of three months “is significant enough to constitute sufficient evidence of a causal connection for the purpose of satisfying [the plaintiffs] burden of demonstrating a prima facie [retaliation] case.”); Goller v. Ohio Dep’t of Rehab. & Corr, 285 Fed.Appx. 250, 257 (6th Cir. 2008) (citing Mickey and Singfield to hold that a two-month temporal period between the protected activity and employee’s termination is sufficient to establish a causal connection for the purposes of establishing a prima facie retaliation case); Vaughn v. Louisville Water Co., 302 Fed.Appx. 337, 349-50 (6th Cir.2008) (assuming without deciding that the four-month temporal proximity between the protected activity and the materially adverse action is sufficient to create a causal connection, but affirming the granting of summary judgment to the defendant because it established a legitimate, non-discriminatory reason for the materially adverse action, and the plaintiff failed to show the defendant’s proffered reason was pretextual). Here, Sanford alleges that he complained to Manor Board members Ward and Cornelius about Carter’s actions in June or July 2004, and again to the entire Board on or near" }, { "docid": "4847345", "title": "", "text": "claim.” Evans v. Prospect Airport Servs., Inc., 286 Fed.Appx. 889, 895 (6th Cir.2008) (citations omitted). The Sixth Circuit has clarified, however, that in certain cases, temporal proximity alone may be sufficient to establish the causation element: Where an adverse employment action occurs very close in time after an employer learns of a protected activity, such temporal proximity between the events is significant enough to constitute evidence of a causal connection for the purposes of satisfying a prima facie case of retaliation. But where some time elapses between when the employer learns of a protected activity and the subsequent adverse employment action, the employee must couple temporal proximity with other evidence of retaliatory conduct to establish causality. Id. (citing Mickey v. Zeidler Tool and Die Co., 516 F.3d 516, 525 (6th Cir.2008)). Here, Plaintiff alleges that he suffered adverse employment actions following his protected activities. Although the exact temporal proximity of the adverse actions to the protected activities is not clear from the record, there is evidence that the timing of the alleged retaliation was close enough to support an inference of retaliatory motive. Thus, there is a factual dispute as to whether a causal connection exists between Plaintiffs asserted protected activities and the alleged adverse actions. Plaintiff has shown that a genuine issue of material fact exists as to each element of the prima facie case of retaliation. The burden then shifts to Defendant to demonstrate a legitimate, nondiscriminatory reason for its conduct. (ii) Legitimate, nondiscriminatory reason Defendant claims that it had a legitimate, nondiscriminatory reason for any alleged retaliation. Specifically, Defendant asserts that the investigation performed by Ametría Knowles into allegations of sexual harassment revealed that Plaintiff was one of three employees who viewed an excessively large quantity of pornography. Accordingly, Defendant asserts that Plaintiff was terminated based on an honest belief that he was viewing pornography on a work computer in violation of company policy. Because Plaintiff has demonstrated a nondiscriminatory reason for its conduct, the burden shifts to Plaintiff to show that the employer’s stated reason for termination was pretextual. (iii) Pretext “A plaintiff who is trying" }, { "docid": "11832656", "title": "", "text": "case of retaliation, a plaintiff must demonstrate that (1) she engaged in protected activity under the ADA, (2) her employer was aware of that activity, (3) she suffered an adverse employment action, and (4) a “causal connection” existed between the protected activity and the adverse action. Id. If the plaintiff does so, then the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. A.C. ex rel. J.C. v. Shelby Cty. Bd. of Educ., 711 F.3d 687, 697 (6th Cir. 2013). The plaintiff must then show that the reason given by the employer was actually a pretext designed to mask retaliation. Id. Williams contends that her proof was sufficient to establish a prima facie case of retaliation. AT&T disputes this, with the key question being the alleged causal connection between Williams’s requests for accommodation and the termination of her employment. Because we agree with the district court’s determination that AT&T’s articulated reason for firing Williams was both legitimate and nondiscriminatory, we will assume without deciding that Williams established her prima facie case. This allows us to proceed directly to the question of pretext. To establish pretext, a plaintiff must demonstrate “both that the employer’s proffered reason was not the real reason for its action, and that the employer’s real reason was unlawful.” EEOC v. Ford, 782 F.3d at 767 (emphasis in original). Williams has not created a genuine dispute of material fact under this standard. Although temporal proximity can demonstrate a causal connection for the purposes of a prima facie case, it alone cannot establish pretext. Donald v. Sybra, Inc., 667 F.3d 757, 763 (6th Cir. 2012). Williams cannot create a genuine dispute of material fact on her retaliation claim by simply asserting that she was terminated soon after asking for additional leave. And Williams has produced no other evidence of pretext. There is ample evidence in the record that AT&T was poised to terminate Williams for legitimate business reasons— her poor attendance record—well before late June of 2014. AT&T managers and human resources personnel, including Area Manager Payne and Attendance Analyst Todd-Kyle, discussed" }, { "docid": "23485765", "title": "", "text": "under Title VII, the plaintiff must demonstrate by a preponderance of the evidence that: 1) he engaged in activity that Title VII protects; 2) defendant knew that he engaged in this protected activity; 3) the defendant subsequently took an employment action adverse to the plaintiff; and 4) a causal connection between the protected activity and the adverse employment action exists. Strouss v. Michigan Dep’t of Corr., 250 F.3d 336, 342 (6th Cir.2001); Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000). “The burden of establishing a prima facie case in a retaliation action is not onerous, but one easily met.” Nguyen, 229 F.3d at 563; see also EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997) (Establishing a prima facie case entails a lower burden of proof than that which is required to win a judgment on the merits.). “After proving the existence of a prima facie case, the burden [of production] shifts to the defendant to articulate a legitimate, non-discriminatory reason for the adverse action.” Nguyen, 229 F.3d at 562. If the defendant meets this burden, the plaintiff must then demonstrate by a preponderance of the evidence that the proffered reason was a mere pretext for discrimination by establishing that the proffered reason: 1) has no basis in fact; 2) did not actually motivate the adverse action; or 3) was insufficient to motivate the adverse action. Manzer v. Diamond Shamrock Chems. Co., 29 F.3d 1078, 1084 (6th Cir.1994). If the plaintiff demonstrates that the defendant’s proffered, nondiscriminatory reason is a pretext, then the fact finder may infer unlawful retaliation. See Kline v. Tenn. Valley Auth., 128 F.3d 337, 344 (6th Cir.1997); Virostek v. Liberty Township Police Dep’t/Trustees, 14 Fed.Appx. 493, 504, 2001 WL 814933, at *7 (6th Cir.2001). Throughout the entire McDonnell Douglas framework, the plaintiff bears the burden of persuasion. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). Here, plaintiff has established the first three prongs of a prima facie case of unlawful retaliation. Title VII broadly protects an employee’s partic ipation “in any manner" }, { "docid": "23218459", "title": "", "text": "the prima facie standards for a retaliation claim, Singfield must establish that: (1) he engaged in activity protected by Title VII, (2) the Housing Authority had knowledge of his exercise of his civil rights, (3) the Housing Authority subjected him to an adverse employment action, and (4) a causal connection exists between the protected activity and the adverse employment action. Harrison v. Metro. Gov’t, 80 F.3d 1107, 1118 (6th Cir.1996) (citing Wrenn v. Gould, 808 F.2d 493, 500 (6th Cir.1987)). At the summary judgment stage in retaliation cases, the order of proof and shifting of burdens is viewed in light of the traditional summary judgment test. Foster v. Arcata Assocs., Inc., 772 F.2d 1453, 1459 (9th Cir.1985), cert. denied, 475 U.S. 1048, 106 S.Ct. 1267, 89 L.Ed.2d 576 (1986). Singfield need not prove his prima facie case by a preponderance of the evidence at this stage. Foster, 772 F.2d at 1459. Indeed, the burden of establishing the prima facie retaliation case is easily met. See Avery, 104 F.3d at 861. Singfield establishes the first three elements without dispute. The fourth element is more difficult. To prove a causal connection, Singfield must produce sufficient evidence from which an inference can be drawn that the Housing Authority took the adverse employment action because Singfield filed a discrimination charge. EEOC v. Avery Dennison Corp., 104 F.3d 858, 861 (6th Cir.1997) (citations omitted). “Although no one factor is dispositive in establishing a causal connection, evidence ... that the adverse action was taken shortly after the plaintiffs exercise of protected rights is relevant to causation.” Nguyen v. City of Cleveland, 229 F.3d 559, 563 (6th Cir.2000); see also Oliver v. Digital Equip. Corp., 846 F.2d 103, 110 (1st Cir.1988) (employee’s discharge “soon after” engaging in protected activity “is indirect proof of a causal connection between the firing and the activity because it is strongly suggestive of retaliation.”); Miller v. Fairchild Indus., Inc., 797 F.2d 727 (9th Cir.1986) (“Causation sufficient to establish a prima facie case of unlawful retaliation may be inferred from the proximity in time between the protected action and the allegedly retaliatory discharge.”)." } ]

[ { "docid": "13683135", "title": "", "text": "because that statute does not grant relief for sentences based not on a guidelines range, but on an agreed term. See Freeman, 131 S.Ct. at 2697-98 (Sotomayor, J., concurring); United States v. Dixon, 687 F.3d 356, 359 (7th Cir.2012) (concluding that Justice Sotoma-yor’s concurrence is controlling under Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977)); United States v. Weatherspoon, 696 F.3d 416, 422 (3d Cir.2012) (same). The only exceptions occur when the plea agreement specifies that the sentence must be within an identified guidelines range or states that the basis for an agreed term is a particular sentencing range. See Freeman, 131 S.Ct. at 2697-98 (Sotomayor, J., concurring); Dixon, 687 F.3d at 359; Weatherspoon, 696 F.3d at 422. Scott’s plea agreement did not identify a guidelines range or suggest that the agreed-upon sentence was based on the guidelines. To the contrary, although the agreement mentioned a base offense level, it expressly refused to calculate a criminal-history score and thus omitted one of the critical inputs necessary to find a final advisory guidelines range. It is therefore impossible to infer from this agreement that the parties based their agreed 192-month term on any guidelines range, let alone a range that the Sentencing Commission reduced through a retroactive amendment, as § 3582(c)(2) contemplates. In Dixon, the plea agreement specified both an offense level and a criminal-history category, but because the agreement did not “expressly link” those calculations to the agreed sentencing range, we concluded that it did not meet either of the Freeman exceptions. Here, Scott’s plea agreement did not even calculate a criminal-history score, nor was there an attempt to link his criminal history and offense level to his agreed sentence. Therefore, any error that the district court may have made in failing to provide an adequate explanation or in the use of its form is beside the point. It correctly rejected Scott’s motion to have his sentence reduced under § 3582(c)(2). The judgment of the district court is AFFIRMED." } ]

[ { "docid": "22454781", "title": "", "text": "defendant sentenced pursuant to a Rule 11(c)(1)(C) plea agreement (“a (C) plea” or “a (C) agreement”) is eligible for a sentence reduction under § 3582(c)(2). 131 S.Ct. at 2685. The critical question was whether, assuming there was a relevant Guidelines amendment, such a defendant was sentenced “based on” that amendment. A four-justice plurality found that a court may “revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytical framework the judge used to determine the sentence or to approve the agreement.” Id. at 2692-93. Justice Sotomayor wrote separately and agreed with the plurality, but did so on narrower grounds that make her concurrence controlling. See United States v. Austin, 676 F.3d 924, 927 (9th Cir.2012). Specifically, Justice Sotomayor held that a sentence imposed under a (C) plea is “based on” an amended guideline if: (1) the agreement “expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment”; and (2) that sentencing range was subsequently amended. Freeman, 131 S.Ct. at 2695 (Sotomayor, J., concurring in the judgment) (emphasis added). Applying Justice Sotomayor’s test here, Pleasant’s sentence was clearly “based on” the crack-cocaine guidelines because: (1) the plea agreement expressly used § 2D1.1(c) to set the stipulated sentence; and (2) because that guideline was “subsequently amended” via Amendments 748, 749, and 759. Thus, even though the plea agreement recognized that Pleasant’s status as a Career Offender could have triggered a higher offense level, the agreement’s express reliance on § 2D1.1(c) means that, under § 3582(c), Pleasant’s sentence was “based on” § 2D1.1(c). Id. at 2697 (noting that a sentence reduction is available when the (C) agreement “call[s] for the defendant to be sentenced within a particular Guidelines sentencing range”). In sum, Pleasant satisfied the first requirement for relief under § 3582(c). B. Although Pleasant satisfied the “based on” requirement of § 3582(c)(2), his sentence reduction would be proper only if it was also consistent with U.S.S.G. § 1B1.10(a)(1). Wesson, 583 F.3d at 730. That provision permits a reduction only if “the guideline range applicable to that" }, { "docid": "15401134", "title": "", "text": "49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Marks is easy to apply here. Even though eight Justices disagreed with Justice Soto-mayor’s approach and believed it would produce arbitrary and unworkable results, see 131 S.Ct. at 2694-95 (plurality), 2703-04 (dissent), her reasoning provided the narrowest, most case-specific basis for deciding Freeman. Her approach therefore states the controlling law. See United States v. Austin, 676 F.3d 924, 927-28 (9th Cir.2012) (applying Marks to treat Justice Sotomayor’s concurring opinion in Freeman as controlling authority); United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir.2011) (same), petition for cert. filed (March 19, 2012) (No. 11-10759); United States v. Smith, 658 F.3d 608, 611 (6th Cir.2011) (same); United States v. Brown, 653 F.3d 337, 340 n. 1 (4th Cir. 2011) (same). Thus, the operative question in determining whether Dixon is eligible for a sentence reduction is whether his plea agreement expressly uses a Guidelines sentencing range to establish his term of imprisonment. It does not, and under Justice Sotomayor’s controlling rationale, he is not eligible. Under Justice Sotomayor’s approach, a prisoner sentenced under a binding plea agreement is eligible for § 3582(c)(2) relief only if the binding plea agreement itself expressly refers to and relies on a guideline sentencing range. Dixon’s written plea agreement provided that “the parties have agreed that the sentence imposed by the Court shall include a term of imprisonment in the custody of the Bureau of Prisons for at least fifteen but no more than twenty years.” Because there was no specific reference to a Guideline range, Dixon’s agreement does not qualify for Justice Sotomayor’s first exception. To qualify under her second exception, his agreement either would have had to “expressly use” a Guideline range or a Guidelines sentencing range would have to be “evident from the agreement itself.” No Guideline range appears in the written terms of the plea agreement that could have formed the basis for the fifteen to twenty year sentencing range. Nevertheless, the agreement sets forth information about Dixon’s offense level (37) and criminal history category (VI). The Guideline range for offense level" }, { "docid": "22044019", "title": "", "text": "support in the recent decisions of our sister circuits. In United States v. Rivera-Martinez, 665 F.3d 344 (1st Cir.2011), the First Circuit held that the defendant was not entitled to a reduction in his sentence under § 3582(c)(2). The defendant had pled guilty pursuant to a (C) plea agreement that “stipulated that the defendant was accountable for over 1.5 kilograms of cocaine base.” Id. at 345. After walking through adjustments to the Guidelines, the agreement specified that the defendant faced a total offense level of 37 but failed to mention anything about the defendant’s criminal history category or his Guidelines range. Id. at 346. The court held that the defendant was ineligible for relief because, without an identified criminal history category or range, “[t]he integers needed to trigger the exception carved out by Justice Sotomayor [were] not present.” Id. at 349. The Ninth Circuit came to a similar conclusion in United States v. Austin, 676 F.3d 924 (9th Cir.2012). It found § 3582(c)(2) relief unavailable to [the defendant] because, even though the agreement noted his offense level, the “plea agreement d[id] not contain any information about [the defendant’s] criminal history category.” 676 F.3d at 930. “Without this information, Justice Sotomayor’s sentence calculation exercise in Freeman ... [was] impossible.” Id. at 929. Thus, § 3582(c)(2) relief was unavailable. Id. Indeed, ours is a clearer case than those before either the Ninth or First Circuits. In both of those cases the agreements explicitly stated the defendants’ total offense level but failed to mention their criminal history category. Austin, 676 F.3d at 928; Rivera-Martinez, 665 F.3d at 346. Wé -lack even that information, as Weatherspoon’s agreement makes no mention of his offense level. Determining his Guidelines range from his plea agreement thus requires a particularly high degree of speculation, which runs contrary to the requirement that the Guidelines range must be clear from the agreement’s face. As such, his sentence was not “based on” the Guidelines and the District Court lacked jurisdiction to reduce his sentence under 18 U.S.C. § 3582(c)(2). III. The District Court’s denial of Weather-spoon’s motion for a reduction in" }, { "docid": "15401135", "title": "", "text": "Justice Sotomayor’s approach, a prisoner sentenced under a binding plea agreement is eligible for § 3582(c)(2) relief only if the binding plea agreement itself expressly refers to and relies on a guideline sentencing range. Dixon’s written plea agreement provided that “the parties have agreed that the sentence imposed by the Court shall include a term of imprisonment in the custody of the Bureau of Prisons for at least fifteen but no more than twenty years.” Because there was no specific reference to a Guideline range, Dixon’s agreement does not qualify for Justice Sotomayor’s first exception. To qualify under her second exception, his agreement either would have had to “expressly use” a Guideline range or a Guidelines sentencing range would have to be “evident from the agreement itself.” No Guideline range appears in the written terms of the plea agreement that could have formed the basis for the fifteen to twenty year sentencing range. Nevertheless, the agreement sets forth information about Dixon’s offense level (37) and criminal history category (VI). The Guideline range for offense level 37 and criminal history category VI is 360 months to life in prison. That much is evident from the agreement itself. Unlike the plea agreement in Freeman, though, Dixon’s plea agreement did not expressly link the offense level and criminal history to the much lower agreed sentence range— fifteen to twenty years’ imprisonment. In short, the written terms of the agreement itself do not “make clear” that any particular Guidelines range was “employed.” See Freeman, 131 S.Ct. at 2697, 2700 (Sotomayor, J., concurring in the judgment). Instead, the link between the Guidelines and the range under the binding plea agreement came from the prosecutor’s oral statements at the sentencing hearing. Dixon argues that those statements show beyond reasonable doubt that, although a Guidelines range is not expressly stated in the written agreement, the imprisonment range agreed to by the parties was based on the Guidelines. The agreed range was from one-half to two-thirds of the bottom of the applicable Guideline range, with the reduction based on Dixon’s substantial assistance to the government. See U.S.S.G. §" }, { "docid": "22050754", "title": "", "text": "to a Rule 11(c)(1)(C) plea agreement is based on ' the agreement and, therefore, § 3582(c)(2) relief is usually not available. The fact that a judge may consult the Sentencing Guidelines when deciding whether to accept a Rule 11(c)(1)(C) plea agreement is irrelevant. “[P]lea bargaining necessarily occurs in the shadow of the sentencing scheme to which the defendant would otherwise be subject. The term of imprisonment imposed by the district court, however, is not ‘based on’ those background negotiations;. instead ... it is based on the binding agreement produced by those negotiations.” Freeman, 131 S.Ct. at 2697 (Sotomayor, J., concurringXinternal citations omitted). Howev er, Justice Sotomayor established an exception to this general rule — where the plea agreement itself expressly refers to and relies upon a Guidelines sentencing range. This limited exception is defined as follows: [I]f a(C) agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered by the United States Sentencing Commission, the term of imprisonment is “based on” the range employed and the defendant is eligible for sentence reduction under § 3582(c)(2). Freeman, 131 S.Ct. at 2695 (Sotomayor, J., concurring). Under the fragmented opinion, Justice Sotomayor’s rationale becomes the Court’s holding. , HI. Applying Justice Sotomayor’s test, we believe the district court lacked the authority to grant Brown § 3582 relief. Brown’s Rule 11(c)(1)(C) plea agreement does not expressly use a Guidelines sentencing range to establish his term of imprisonment. His plea agreement simply states that “the appropriate sentence in this case is incarceration for not less than 180 months and not more than 240 months.” (J.A. 18.) The fact that the district court consulted the Guidelines in establishing Brown’s specific sentence is irrelevant. . See Freeman, 131 S.Ct. at 2697 (Sotomayor, J., concurring). Therefore, Brown’s plea agreement does not satisfy the limited exception recognized in Justice Sotomayor’s concurrence. Consequently, the plea agreement itself “is the foundation for the term of imprisonment” imposed, and the district court lacked the authority under § 3582(c)(2) to grant Brown’s motion for a reduced sentence. Freeman, 131" }, { "docid": "8601203", "title": "", "text": "The court of appeals had held that, in the absence of a miscarriage of justice, entering into a C-type plea agreement presented a categorical bar to section 3582(c)(2) relief. United States v. Goins, 355 Fed.Appx. 1, 2-3 (6th Cir.2009), rev’d in part sub nom., Freeman v. United States, — U.S. -, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). Five Justices con- eluded that no such bar existed. But those five Justices reached this conclusion in different ways — and therein lies the rub. A four-member plurality found determinative the analytic framework that under-girds the decisionmaking process employed by sentencing judges in federal criminal cases. Freeman, 131 S.Ct. at 2692-94 (Kennedy, J., with whom Ginsburg, Breyer, and Kagan, JJ., joined). The sentencing guidelines are integral to that process. Even in cases in which sentencing follows the execution of a C-type plea agreement, the sentencing judge is required to take the guidelines into account when deciding whether to accept the agreement and impose the agreed sentence. Id. at 2692-93. Viewed through this prism, a judge’s decision to accept a C-type plea agreement will almost always be based on the guidelines, thereby rendering the defendant eligible for section 3582(c)(2) relief when those guidelines are amended and made retroactive. Id. at 2695. Four votes, however, do not make a majority on a nine-judge court. To achieve the magic number, the plurality depended upon Justice Sotomayor, who also found the defendant eligible for section 3582(c)(2) relief. But Justice Sotomayor’s approach differed sharply from that of the plurality. She concluded that a term of imprisonment imposed by a court pursuant to a C-type plea agreement is based on the agreement, not on the sentencing judge’s assessment of the guidelines. Id. at 2695 (Sotomayor, J., concurring). Withal, Justice Sotomayor carved out an exception for cases in which a C-type plea agreement “expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment, and that range is subsequently lowered.” Id. In that event, “the term of imprisonment is ‘based on’ the range employed and the defendant is eligible for sentence reduction under" }, { "docid": "22494005", "title": "", "text": "4-1-4 decision that left lower courts confused as to whether the plurality or the concurring opinion controlled. The plurality of four Justices in Freeman concluded that defendants who plead guilty pursuant to a so-called \"Type-C agreement\" may be eligible for a sentence reduction under § 3582(c)(2) because Type-C sentences are \"based on the Guidelines\" \"to whatever extent the sentencing range in question was a relevant part of the analytic framework the judge used to determine the sentence or to approve the agreement.\" 564 U.S., at 530, 131 S.Ct. 2685. Four Justices dissented. Id., at 544-551, 131 S.Ct. 2685 (opinion of ROBERTS, C.J.). They would have held that a defendant who pleads guilty pursuant to a Type-C agreement is categorically ineligible for a sentence reduction under § 3582(c)(2) because such a sentence is always \"based on\" the plea agreement, and not on the Guidelines. Id., at 544-548, 131 S.Ct. 2685. Parting ways with all eight of my colleagues, I concurred only in the judgment. Id., at 534-544, 131 S.Ct. 2685. I held the view that sentences imposed under Type-C agreements are typically \"based on\" the agreements themselves, not on the Guidelines. Id., at 535-536, 131 S.Ct. 2685. \"In the (C) agreement context,\" I explained, \"it is the binding plea agreement that is the foundation for the term of imprisonment to which the defendant is sentenced.\" Id., at 535, 131 S.Ct. 2685. But, in my view, that general rule was not absolute. Rejecting the categorical rule adopted by the dissent, I instead concluded that some Type-C sentences were \"based on\" the Guidelines and thus eligible for sentencing reductions under § 3582(c)(2). Id., at 538-539, 131 S.Ct. 2685. Specifically, I clarified that § 3582(c)(2) relief was available in cases where the Type-C agreement \"call[s] for the defendant to be sentenced within a particular Guidelines sentencing range,\" or in cases where the \"plea agreement ... provide[s] for a specific term of imprisonment ... but also make[s] clear that the basis for the specified term is a Guidelines sentencing range.\" Id., at 538-539, 131 S.Ct. 2685. Because Freeman's agreement presented one such case, I agreed" }, { "docid": "12855719", "title": "", "text": "issued by the Sentencing Commission.” Id. § 3582(c)(2). In Freeman, the Supreme Court split over the question whether defendants like Hughes who enter into plea agreements that recommend a particular sentence as a condition of their guilty plea were sentenced “based on a sentencing range.” 564 U.S. at 525, 131 S.Ct. 2685 (plurality opinion). William Freeman entered into a plea agreement with the government under Rule 11(c)(1)(C), and the district court accepted the agreement and imposed the recommended sentence. Id. at 527-28, 131 S.Ct. 2685. The Sentencing Commission later issued a retroactive amendment that lowered the guidelines range applicable to Freeman’s conduct, and he moved for a sentence reduction, 18 U.S.C. § 3582(c)(2). Id. at 528, 131 S.Ct. 2685. The district court denied Freeman’s motion, and the Sixth Circuit affirmed. Id. But the Supreme Court, in a five-to-four decision, reversed. Id. at 525-526, 131 S.Ct. 2685 . Five justices agreed that the district court could reduce Freeman’s sentence, but those justices differed in their reasoning. The plurality opinion, joined by four justices, determined that the “[t]he district judge’s decision to impose a sentence may ... be based on the Guidelines even if the defendant agrees to plead guilty under Rule 11(c)(1)(C).” Id. at 526, 131 S.Ct. 2685. “In every case the judge must exercise discretion to impose an appropriate sentence” and “[tjhis discretion, in turn, is framed by the Guidelines.” Id. at 525, 131 S.Ct. 2685. But Justice Sotomayor concurred only in the judgment. Id. at 534, 131 S.Ct. 2685. Justice Sotomayor’s concurring opinion determined that “the term of imprisonment imposed by a district court pursuant to an agreement authorized by Federal Rule of Criminal Procedure 11(c)(1)(C) ... is ‘based on’ the agreement itself, not on the judge’s calculation of the Sentencing Guidelines.” Id. (Sotomayor, J., concurring in the judgment). Under this view, if a plea agreement “call[s] for the defendant to be sentenced within a particular Guidelines sentencing range,” the acceptance of the agreement by the district court “obligates the court to sentence the defendant accordingly, and there can be no doubt that the term of imprisonment the court" }, { "docid": "15401140", "title": "", "text": "the binding plea agreement for a one-third to one-half discount from the bottom of the applicable Guideline range. It is hard to believe that these assurances were not relevant, perhaps even decisive, in the judge’s decision to accept the binding plea agreement. Nevertheless, Justice Sotomayor’s controlling opinion in Freeman addressed this possibility and rejected reliance on the parties’ negotiations and oral explanations beyond the scope of the written agreement itself. All that matters is whether the parties’ binding plea agreement was expressly based on the Sentencing Guidelines, not whether the Guidelines informed the parties’ decision to enter into the agreement or whether the Guidelines informed the court’s decision to accept the agreement. See, e.g., Rivera-Martínez, 665 F.3d at 349-50 (defendant ineligible where plea agreement contained an offense level but did not identify any Guidelines sentencing range or a criminal history category); Brown, 653 F.3d at 340 (defendant ineligible where plea agreement, although specifying a range of possible terms of imprisonment, did not “expressly use a Guidelines sentencing range to establish his term of imprisonment”). Dixon’s binding plea agreement contained an offense level and criminal history category sufficient to determine that the applicable Guideline range was 360 months to life in prison. The written agreement then provided for a binding range of 180 to 240 months in prison. The written agreement therefore did not expressly base the agreed sentence on a Guideline range in the written agreement itself. Pursuant to Justice Sotomayor’s controlling opinion in Freeman, we find ourselves constrained to conclude that Dixon’s sentence was not “based on” a subsequently-reduced Sentencing Guideline range. Accordingly, Dixon is not eligible for a sentence reduction under § 3582(c)(2). The judgment of the district court is Affirmed. . A binding plea agreement may stipulate that \"a specific sentence or sentencing range is the appropriate disposition of the case, or that a particular provision of the Sentencing Guidelines, or policy statement, or sentencing factor does or does not apply.” Fed. R.Crim.P. 11(c)(1)(C). Once the court accepts the plea agreement, \"such a recommendation or request binds the court.” Id. A court considering a binding plea agreement" }, { "docid": "22036133", "title": "", "text": "even if he were eligible for one. Id. at 470. Second, based on United States v. Shawn Johnson, 697 F.3d 1190 (8th Cir. 2012) (per curiam), we further determine Long is ineligible for a sentence reduction. The statute permits a district court to reduce a sentence only if the sentence is “based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U.S.C. § 994(o).” 18 U.S.C. § 3582(c)(2) (emphasis added). Justice Sotomayor’s controlling concurring opinion in Freeman v. United States, 564 U.S. -, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), established that “the language of the written [Rule 11(c)(1)(C) ] plea agreement ... determines the applicability of § 3582(e)(2).” United States v. Brome, 698 F.3d 1042, 1045 (8th Cir.2012). Only if the Rule 11(c)(1)(C) agreement “expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment” can it be said the resulting sentence “is ‘based on’ the range employed.” Freeman, 564 U.S. at -, 131 S.Ct. at 2695 (Sotomayor, J., concurring) (emphasis added). Applying these principles in Sham Johnson to a plea agreement materially indistinguishable from Long’s, we could not “say that the Guidelines ‘range serve[d] as the basis or foundation for the term of imprisonment.’ ” Shawn Johnson, 697 F.3d at 1191 (quoting Freeman, 564 U.S. at - — -, 131 S.Ct. at 2695 (Sotomayor, J., concurring)). Nor can we say so here. Although Long’s plea agreement specified a base offense level of 26, “there [wa]s no express connection between [the Guidelines] and” Long’s “sentence.” Id. Not only does the plea agreement fail to specify Long’s Guidelines range, it is actually impossible to calculate the range based solely on the plea agreement because Long’s adjustments and criminal history category are missing. Even if we take the agreement’s base offense level (26) and combine it with additional information listed only in the presentence investigation report (adding 2 levels for possession of a firearm, subtracting 3 levels for acceptance of responsibility, and computing a criminal history category of VI), we find no clear connection between the resulting Guidelines" }, { "docid": "22494009", "title": "", "text": "rule. It studiously adheres to \"this Court's precedents since Freeman, \" which firmly establish \"that the Guidelines remain the foundation of federal sentencing decisions.\" Ante, at 1775; see ante, at 1777 (discussing Molina-Martinez, 578 U.S. ----, 136 S.Ct. 1338 ; Peugh v. United States, 569 U.S. 530, 133 S.Ct. 2072, 186 L.Ed.2d 84 (2013) ). And it aligns more closely than the dissent does with the view I articulated in Freeman . For all these reasons, I now lend my vote to the majority and accede in its holding \"that a sentence imposed pursuant to a Type-C agreement is 'based on' the defendant's Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement.\"Ante, at 1775. Chief Justice ROBERTS, with whom Justice THOMAS and Justice ALITO join, dissenting. Seven years ago, four Justices took the position that a defendant sentenced to a term of imprisonment specified in a binding plea agreement may have been sentenced \"based on\" a Sentencing Guidelines range, simply because the district court must consider the Guidelines in deciding whether to accept the agreement. Freeman v. United States, 564 U.S. 522, 529-530, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) (plurality opinion). That view has since garnered more votes, but has not gotten any more persuasive. A defendant is eligible for a sentence reduction following a retroactive Guidelines amendment if he was \"sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.\" 18 U.S.C. § 3582(c)(2). When a defendant enters into a binding \"Type-C\" plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), however, the resulting sentence is \"dictated by the terms of the agreement entered into by the parties, not the judge's Guidelines calculation.\" Freeman, 564 U.S., at 536, 131 S.Ct. 2685 (SOTOMAYOR, J., concurring in judgment). Five Justices recognized as much in Freeman . See ibid. ; id., at 544, 131 S.Ct. 2685 (ROBERTS, C.J., dissenting). If a defendant pleads guilty pursuant to a Type-C agreement specifying a particular term of" }, { "docid": "15401133", "title": "", "text": "but also make clear that the basis for the specified term is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty. As long as that sentencing range is evident from the agreement itself, for purposes of § 3582(c)(2) the term of imprisonment imposed by the court in accordance with that agreement is “based on” that range. Id. at 2697-98. In Freeman, this second exception applied. Freeman’s binding plea agreement expressly used the Guidelines to establish the term of imprisonment, so Justice Sotomayor concurred in the plurality’s judgment that the district court had authority to reduce his sentence. See id. at 2699-2700. When a majority of the justices do not agree on a single rationale for deciding a case, “the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks v. United States, 430 U.S. 188, 193, 97 S.Ct. 990, 51 L.Ed.2d 260 (1977); quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (opinion of Stewart, Powell, and Stevens, JJ.). Marks is easy to apply here. Even though eight Justices disagreed with Justice Soto-mayor’s approach and believed it would produce arbitrary and unworkable results, see 131 S.Ct. at 2694-95 (plurality), 2703-04 (dissent), her reasoning provided the narrowest, most case-specific basis for deciding Freeman. Her approach therefore states the controlling law. See United States v. Austin, 676 F.3d 924, 927-28 (9th Cir.2012) (applying Marks to treat Justice Sotomayor’s concurring opinion in Freeman as controlling authority); United States v. Rivera-Martinez, 665 F.3d 344, 348 (1st Cir.2011) (same), petition for cert. filed (March 19, 2012) (No. 11-10759); United States v. Smith, 658 F.3d 608, 611 (6th Cir.2011) (same); United States v. Brown, 653 F.3d 337, 340 n. 1 (4th Cir. 2011) (same). Thus, the operative question in determining whether Dixon is eligible for a sentence reduction is whether his plea agreement expressly uses a Guidelines sentencing range to establish his term of imprisonment. It does not, and under Justice Sotomayor’s controlling rationale, he is not eligible. Under" }, { "docid": "15401139", "title": "", "text": "were an “admission” that the defendant’s binding plea agreement was not based on the Guidelines, contrary to a Guidelines worksheet the parties had attached to the agreement. The court reasoned that Justice Sotomayor had rejected the idea that courts can consider parol evidence to ascertain whether the sentence in the plea agreement was based on the Guidelines. Id. at 613, quoting Freeman, 131 S.Ct. at 2697 (“I therefore cannot agree with Freeman that § 3582(c)(2) calls upon district courts to engage in a free-ranging search through the parties’ negotiating history in search of a Guidelines sentencing range that might have been relevant to the agreement or the court’s acceptance of it.”). Consequently, the Sixth Circuit found that Smith’s counsel’s “after-the-fact statements about the basis for the plea agreement” were not relevant to Smith’s eligibility for a sentence reduction. 658 F.3d at 613. In this case, it is the defendant who seeks to rely on the oral statements. The prosecutor’s oral statements in Dixon’s sentencing hearing informed the court of the parties’ negotiations that resulted in the binding plea agreement for a one-third to one-half discount from the bottom of the applicable Guideline range. It is hard to believe that these assurances were not relevant, perhaps even decisive, in the judge’s decision to accept the binding plea agreement. Nevertheless, Justice Sotomayor’s controlling opinion in Freeman addressed this possibility and rejected reliance on the parties’ negotiations and oral explanations beyond the scope of the written agreement itself. All that matters is whether the parties’ binding plea agreement was expressly based on the Sentencing Guidelines, not whether the Guidelines informed the parties’ decision to enter into the agreement or whether the Guidelines informed the court’s decision to accept the agreement. See, e.g., Rivera-Martínez, 665 F.3d at 349-50 (defendant ineligible where plea agreement contained an offense level but did not identify any Guidelines sentencing range or a criminal history category); Brown, 653 F.3d at 340 (defendant ineligible where plea agreement, although specifying a range of possible terms of imprisonment, did not “expressly use a Guidelines sentencing range to establish his term of imprisonment”). Dixon’s" }, { "docid": "22945893", "title": "", "text": "to reach results although the distinct motives and thinking which produced the majority’s result remain quite distinct. It is the result produced by majority vote that determines the stare decisis effect of the judgment. That is because whether the majority voté is produced by the adoption of one rationale or two, the rule of law made — the decision' — 'is based on a rationale or rationales expected to remain the same and produce the same result in the next applicable case. After all, “stare decisis” means “to stand by things decided.” B. A simple application of Marks’ methodology to Freeman compels a finding that Justice Sotomayor’s concurrence is the “holding” of Freeman. See United States v. Austin, 676 F.3d 924, 927-28 (9th Cm. 2012). Five members of the Court agreed that Freeman — who had been sentenced pursuant to a Rule 11(c)(1)(C) agreement — was eligible for sentencing modification under 18 U.S.C. § 3582(c)(2), because his plea agreement had been “based on” a subsequently modified sentencing Guidelines range. Freeman v. U.S., 564 U.S. 522, 534, 544, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011). Writing for a four-member plurality, Justice Kennedy reasoned that a plea agreement is “based on” applicable Guidelines whenever the sentencing judge at least consulted those guidelines before approving the proposed sentence — which, Justice Kennedy explained, the judge is statutorily “required” to do in “every case.” See Freeman, 564 U.S. at 529, 131 S.Ct. 2685 (plurality opinion). Concurring in result, Justice Sotomayor, a former district court judge experienced in actual sentencing, reasoned that plea agreements are sometimes based on sentencing guidelines, but only when the agreement itself “expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment,” or the sentencing range is otherwise “evident from the agreement itself.” Id. at 534, 539, 131 S.Ct. 2685 (Soto-mayor, J., concurring) (emphasis added). Chief Justice Roberts, writing for the four dissenting Justices, “agree[d] with Justice Sotomayor that ‘the term of imprisonment imposed pursuant to a [Rule 11(c)(1)(C) ] agreement is ... based on the agreement itself’ ” Id. at 544, 131 S.Ct." }, { "docid": "8601208", "title": "", "text": "Sotomayor’s exception by “expressly us[ing] a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment,” id. at 2695 (Sotomayor, J., concurring), the sentencing judge’s decision to accept that sentence is based on the guidelines. Thus, Justice Sotomayor’s concurrence delineates the narrowest grounds on which at least five Justices agree. It is, therefore, the controlling opinion. See Marks, 430 U.S. at 193-94, 97 S.Ct. 990. In reaching this conclusion, we do not write on a pristine page. In the uncertain wake of Freeman, two other courts of appeals have published opinions addressing this question. Both agree with our conclusion. See United States v. Smith, 658 F.3d 608, 611 (6th Cir.2011); United States v. Brown, 653 F.3d 337, 340 & n. 1 (4th Cir.2011), petition for cert. filed, (U.S. Sept. 14, 2011) (No. 11-6385). It remains for us to decide whether the defendant is eligible for a sentence reduction under the rationale of the concurrence. Justice Sotomayor allows for eligibility when the agreement itself expressly indicates that the term of imprisonment is based on a guideline sentencing range that has subsequently been reduced by the Sentencing Commission. See Freeman, 131 S.Ct. at 2695 (Sotomayor, J., concurring). She has identified two scenarios in which this phenomenon will occur. The first — a scenario in which a C-type plea agreement calls for a sentence within an identified sentencing range, id. at 2697— does not exist here. The second scenario requires more elaboration. Justice Sotomayor wrote: [A] plea agreement might ... make clear that the basis for [a] specified term [of imprisonment] is a Guidelines sentencing range applicable to the offense to which the defendant pleaded guilty. As long as that sentencing range is evident from the agreement itself, for purposes of § 3582(c)(2) the term of imprisonment imposed by the court in accordance with that agreement is “based on” that range. Id. at 2697-98. The defendant’s fallback argument is that he is eligible for section 3582(c)(2) relief under this scenario. This argument assumes that the second scenario requires “an analysis of the reasons that motivated or informed the parties’" }, { "docid": "22494010", "title": "", "text": "simply because the district court must consider the Guidelines in deciding whether to accept the agreement. Freeman v. United States, 564 U.S. 522, 529-530, 131 S.Ct. 2685, 180 L.Ed.2d 519 (2011) (plurality opinion). That view has since garnered more votes, but has not gotten any more persuasive. A defendant is eligible for a sentence reduction following a retroactive Guidelines amendment if he was \"sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.\" 18 U.S.C. § 3582(c)(2). When a defendant enters into a binding \"Type-C\" plea agreement pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C), however, the resulting sentence is \"dictated by the terms of the agreement entered into by the parties, not the judge's Guidelines calculation.\" Freeman, 564 U.S., at 536, 131 S.Ct. 2685 (SOTOMAYOR, J., concurring in judgment). Five Justices recognized as much in Freeman . See ibid. ; id., at 544, 131 S.Ct. 2685 (ROBERTS, C.J., dissenting). If a defendant pleads guilty pursuant to a Type-C agreement specifying a particular term of imprisonment, the district court may sentence him only to that term. See Fed. Rule Crim. Proc. 11(c)(1)(C) (the parties' choice of an \"appropriate\" sentence \"binds the court once the court accepts the plea agreement\"). If the judge considers the parties' chosen sentence to be inappropriate, he does not have discretion to impose a different one. Instead, the court's only option is to reject the agreement and afford the defendant the opportunity to be released from his guilty plea. See Fed. Rules Crim. Proc. 11(c)(3)(A), (4), (5). As the Court points out, a district court considering whether to accept a Type-C agreement must consult the Guidelines, as the District Court did here. Ante, at 1773; see App. to Pet. for Cert. 32a-36a. But \"when determining the sentence to impose,\" the district court may base its decision on \"one thing and one thing only-the plea agreement.\" Freeman, 564 U.S., at 545, 131 S.Ct. 2685 (ROBERTS, C.J., dissenting). The Court characterizes this distinction as \"artificial,\" arguing that the district court's ultimate imposition of a sentence often has as" }, { "docid": "22044013", "title": "", "text": "a defendant’s sentence is “based on” the Guidelines turns solely on an examination of the four corners of the plea agreement. Id. at 2698 n. 2 (“[T]o determine whether a sentence imposed pursuant to a (C) plea agreement was ‘based on’ a Guidelines sentencing range, the reviewing court must necessarily look to the agreement itself.”); United States v. Dixon, 687 F.3d 356, 360 (7th Cir.2012) (“Under Justice Sotomayor’s approach, a prisoner sentenced under a binding plea agreement is eligible for § 3582(c)(2) relief only if the binding plea agreement itself expressly refers to and relies on a guideline sentencing range.”). Any statements made by the District Court, the probation department, or counsel are irrelevant to this analysis. Justice Sotomayor identified only two situations in which a defendant sentenced pursuant to a (C) plea agreement could be eligible for a sentence reduction. Freeman, 131 S.Ct. at 2697-700; Dixon, 687 F.3d at 358-59. First, when the defendant’s agreement “call[s] for the defendant to be sentenced within a particular Guideline[s] sentencing range,” “there can be no doubt that the term of imprisonment the court imposes is ‘based on’ the agreed-upon sentencing range.” Freeman, 131 S.Ct. at 2697. Second, when the defendant’s agreement “providefs] for a specific term of imprisonment — such as a number of months” the sentence is “based on” a Guidelines range when the agreement “make[s] clear” that the foundation for the agreed-upon sentence was the Guidelines. Id. In other words: [a]s long as that sentencing range is evident from the agreement itself, for purposes of § 3582(c)(2) the term of imprisonment imposed by the court in accordance with that agreement is “based on” that range. Therefore, when a (C) agreement expressly uses a Guidelines sentencing range to establish the term of imprisonment, and that range is subsequently lowered by the Commission, the defendant is eligible for sentence reduction under § 3582(c)(2). Id. at 2697-98 (emphasis added). Thus, to be eligible for relief under 18 U.S.C. § 3582(c)(2), a defendant who agrees to a specific term of imprisonment in a (C) plea agreement must show that his agreement both identifies a" }, { "docid": "22044014", "title": "", "text": "the term of imprisonment the court imposes is ‘based on’ the agreed-upon sentencing range.” Freeman, 131 S.Ct. at 2697. Second, when the defendant’s agreement “providefs] for a specific term of imprisonment — such as a number of months” the sentence is “based on” a Guidelines range when the agreement “make[s] clear” that the foundation for the agreed-upon sentence was the Guidelines. Id. In other words: [a]s long as that sentencing range is evident from the agreement itself, for purposes of § 3582(c)(2) the term of imprisonment imposed by the court in accordance with that agreement is “based on” that range. Therefore, when a (C) agreement expressly uses a Guidelines sentencing range to establish the term of imprisonment, and that range is subsequently lowered by the Commission, the defendant is eligible for sentence reduction under § 3582(c)(2). Id. at 2697-98 (emphasis added). Thus, to be eligible for relief under 18 U.S.C. § 3582(c)(2), a defendant who agrees to a specific term of imprisonment in a (C) plea agreement must show that his agreement both identifies a Guidelines range and demonstrates a sufficient link between that range and the recommended sentence. See id.; Dixon, 687 F.3d at 359-60. Failure to meet either requirement is fatal to a defendant’s § 3582(c)(2) motion. Applying this framework, Justice Soto-mayor concluded that William Freeman fell into the second category of defendants and was eligible for relief. Freeman agreed to plead guilty to multiple cocaine base possession and distribution charges pursuant to a (C) plea agreement that specified that a 106-month sentence was appropriate. The agreement stated that “[b]oth parties have independently reviewed the Sentencing Guidelines applicable in this case and that Freeman agree[d] to have his sentence determined pursuant to the Sentencing Guidelines.” Id. at 2691 (internal quotation marks omitted). It also stated that his offense level was 19, “as determined by the quantity of drugs and his acceptance of responsibility,” and that the parties anticipated that Freeman would be assigned a criminal history category of IV. Id. at 2699. Because the agreement provided her with enough information to do so, Justice Sotomayor turned to the" }, { "docid": "22454780", "title": "", "text": "prongs are satisfied: “(1) the sentence is ‘based on a sentencing range that has subsequently been lowered by the Sentencing Commission’ and (2) ‘such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.’ ” United States v. Wesson, 583 F.3d 728, 730 (9th Cir.2009) (quoting 18 U.S.C. § 3582(c)(2)) (emphasis added). The “primary applicable policy statement” is U.S.S.G. § 1B1.10, which states that a defendant is eligible for a sentence reduction if “the guideline range applicable to that defendant has subsequently been lowered as a result of an amendment to the Guidelines....” U.S.S.G. § 1B1.10(a)(1) (emphasis added). Although the “applica ble to” language from the policy statement appears to mirror the “based on” language of the first prong, each prong requires a separate analysis. See Wesson, 583 F.3d at 730, 732. A. The government does not dispute that Pleasant satisfied the first prong of § 3582(c)(2), but a brief discussion of that issue provides necessary background for our discussion of the second prong. In Freeman, the Supreme Court addressed whether a defendant sentenced pursuant to a Rule 11(c)(1)(C) plea agreement (“a (C) plea” or “a (C) agreement”) is eligible for a sentence reduction under § 3582(c)(2). 131 S.Ct. at 2685. The critical question was whether, assuming there was a relevant Guidelines amendment, such a defendant was sentenced “based on” that amendment. A four-justice plurality found that a court may “revisit a prior sentence to whatever extent the sentencing range in question was a relevant part of the analytical framework the judge used to determine the sentence or to approve the agreement.” Id. at 2692-93. Justice Sotomayor wrote separately and agreed with the plurality, but did so on narrower grounds that make her concurrence controlling. See United States v. Austin, 676 F.3d 924, 927 (9th Cir.2012). Specifically, Justice Sotomayor held that a sentence imposed under a (C) plea is “based on” an amended guideline if: (1) the agreement “expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment”; and (2) that sentencing range was subsequently amended. Freeman, 131 S.Ct. at" }, { "docid": "23648587", "title": "", "text": "131 S.Ct. 2685, 180 L.Ed.2d 519 (2011), in which the Supreme Court held that in some circumstances a stipulated plea can be “based on” the Guidelines. Specifically, Freeman considered whether a district court had authority to grant a defendant’s motion for a reduced sentence under 18 U.S.C. § 3582(c)(2) where the original sentence was imposed pursuant to a Rule 11(c)(1)(C) plea agreement. Subsection 3582(c)(2) permits a district court to reduce a defen dant’s sentence where that defendant “has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission.” 18 U.S.C. § 3582(c)(2). The issue in Freeman was whether a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is “based on” a Guidelines range, and therefore reviewable. The Supreme Court held that a sentence imposed pursuant to a Rule 11(c)(1)(C) plea agreement is generally based on the agreement and not the Guidelines, but that an exception exists where the “agreement expressly uses a Guidelines sentencing range applicable to the charged offense to establish the term of imprisonment.” Freeman, 131 S.Ct. at 2695 (Sotomayor, J., concurring in the judgment). Because the plea agreement in Freeman explicitly calculated the applicable Guidelines range and stated that the defendant “agree[d] to have his sentence determined pursuant to the Sentencing Guidelines,” the defendant’s sentence was “based on” the Guidelines and therefore reviewable. Id. at 2699-700. Applying Freeman’s rule in United States v. Brown, 653 F.3d 337 (4th Cir. 2011), we concluded that the district court lacked jurisdiction to reduce the sentence at issue there, where the Rul,e 11(e)(1)(C) plea agreement did “not expressly use a Guidelines sentencing range to establish [the] term of imprisonment.” Id. at 340. Unlike the plea agreement at issue in Freeman, the agreement considered in Brown never engaged in a Guidelines calculation, nor did it state that the stipulated sentencing range was based on such a calculation. Id. We see no reason why the rule articulated in Freeman and applied in Brown is not also applicable to the jurisdiction-defining provisions of Section 3742. That Section specifically provides that we may" } ]

[ { "docid": "22252603", "title": "", "text": "proper. As the petitioners proceeded to trial without claiming prejudice from the Commission’s press release, applying for an adjournment of the hearing and determination, or otherwise presenting their claims of pre-judgment to the Commission, they are foreclosed from complaining of this now. Section 25(a), Securities Exchange Act of 1934, 15 U.S.C.A. § 78y. Accordingly, we affirm the Commission’s order. The principal and essential purpose of the 1933 Act is to protect investors by requiring registration with the Commission of certain information concerning securities offered for sale. A. C. Frost & Co. v. Coeur D’Alene Mines Corp., 1941, 312 U.S. 38, 40, 61 S.Ct. 414, 85 L.Ed. 500. For reasons which will be developed, the crucial provisions of law in this case are § 5 of the 1933 Act, 15 U.S.C.A. § 77e, which makes it unlawful for anyone, by any interstate communication or use of the mails, to sell or deliver any security unless a registration statement is in effect; and § 4(1), 15 U.S.C.A. § 77d(l), which exempts from this prohibition “transactions by any person other than issuer, underwriter, or dealer” and “transae tions by an issuer not involving any public offering.” Since the Commission’s proceeding was had on stipulated facts the only question is whether it was justified in drawing from them the inferences and conclusions of which the petitioners complain, principally that the petitioners were underwriters and that the issue was a public offering. To examine these inferences and conclusions we must state in some detail the facts concerning the issuance of the unregistered debentures and common stock of Crowell-Collier Publishing Company. On July 6, 1955, Elliott & Company agreed with Crowell-Collier to try to sell privately, without registration, $3,000,-000 of Crowell-Collier 5% debentures, convertible at any time into common stock at $5 a share, and the Elliott firm received an option on an additional $1,-000. 000 of debentures. Edward L. Elliott, a partner in Elliott & Company, advised Gilligan, one of the two partners of the registrant, Gilligan, Will & Co., of this agreement. He told Gilligan that Gilligan could purchase, but only for investment, as" } ]

[ { "docid": "7048242", "title": "", "text": "security * * * or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to * * * any instrument commonly known as a ‘security’ * * 15 U.S.C. §§ 77b(l), 78c(a)(10). Accordingly, the Commodity Exchange Act was amended to provide that \"the [CFTC] shall have no jurisdiction to designate a board of trade as a contract market for any transaction whereby any party to such transaction acquires any put, call, or other option on one or more securities * * 7 U.S.C. § 2a(i) (1983). The CFTC retains its exclusive jurisdiction regarding GNMA futures, not forwards or options, i.e., \"transactions involving contracts of sale of a commodity for future delivery, traded or executed on a * * * board of trade [or] exchange * * 7 U.S.C. § 2. Defendants seek to inject as an issue the SEC-CFTC jurisdictional conflict antedating these amendments regarding whether GNMA options may be traded on the Chicago Board Options Exchange (subject to SEC jurisdiction) or on the Chicago Board of Trade (subject to CFTC jurisdiction). See Board of Trade of City of Chicago v. S.E.C., 677 F.2d 1137 (7th Cir.1982), vacated as moot, 459 U.S. 1026, 103 S.Ct. 434, 74 L.Ed.2d 594-595. The jurisdictional issue pertaining to the trading on organized exchanges of financial instrument options such as GNMA options is distinct from our instant inquiry and we need not address it herein. . For a discussion of the jurisdictional overlap and dispute between the SEC and the CFTC with respect to GNMA futures, see Note, The GNMA Securities Market: An Analysis Of Proposals For A Regulatory Scheme, 9 Fordham Urb.L.J. 457 (1980): [The CFTC] has exclusive jurisdiction over transactions involving contracts of sale of a commodity for future delivery traded or executed on a contract market. The regulation of commodity futures, not government securities, is the primary function of the CFTC. However, section 2(1) of the 1933 Act defines the term \"security” to include any right to purchase a security. Because a GNMA futures contract is a right to a purchase a GNMA security, arguably both" }, { "docid": "7048223", "title": "", "text": "are.both committed to carry out the transaction on the settlement date. Neither the delivery of the certificates nor their acceptance by the buyer is optional. The reality of the situation is that there has been a transaction in GNMA’s on the date when the parties execute the firm commitment contract, even though the cash and the GNMA’s will not actually change hands until a future date. ABM Industries, Inc. v. Oppenheimer Government Securities, Inc., [Current] Fed.Sec.L.Rep. (CCH) ¶ 99,435, at p. 96,490 (N.D.Ill.1983). The sound rationale behind ABM Industries and cases similarly holding that GNMA forward contracts constitute a purchase and sale of GNMA securities is not impugned by the decision in P & C Investment Club v. Becker, 520 F.Supp. 120 (E.D.Pa.1981), relied upon heavily by defendants. We will address P & C Investment Club, which involved the purchase of treasury bill futures, after a necessary explication of the distinctions between forwards and futures contracts and defendants’ assertion that a SEC-CFTC jurisdictional dispute is at issue in this case. Defendants assert that if the contract at issue is deemed to constitute a contract for the purchase and sale of securities for purposes of the antifraud provisions, such a holding would encroach upon the jurisdiction of the Commodity Futures Trading Commission (CFTC). We find no merit in this assertion. The CFTC does not possess any statutory authority to regulate the trading of GNMA forward contracts. The “Treasury Amendment” of 1974 to the CEA provides in pertinent part; Nothing in this chapter shall be deemed to govern or in any way be applicable to transactions in foreign currency, security warrants, security rights, resales of installment loan contracts, repurchase options, government securities, or mortgages and mortgage purchase commitments, unless such transactions involve the sale thereof for future delivery conducted on a board of trade. 7 U.S.C. § 2. Forward contracts by definition are traded through party-to-party negotiation (over the counter), unlike futures which are traded on an organized exchange. The legislative history behind the 1974 amendment indicates the Treasury Department was concerned that the CFTC might exceed its jurisdiction in regulating financial" }, { "docid": "20372824", "title": "", "text": "contracts they sold were not “futures contracts” regulated by the Act. We disagree. Under section 2(a)(1)(A) of the Act, the CFTC has exclusive jurisdiction over “accounts, agreements ... and transactions involving contracts of sale of a commodity for future delivery, traded or executed on a contract market.” 7 U.S.C. § 2. The Act requires that these “futures contracts” be offered and sold on commission-designated boards of trade, or they are deemed illegal “off-exchange” contracts. In re Bybee, 945 F.2d 309, 312 (9th Cir.1991) (citing 7 U.S.C. § 6(a)). A futures contract enables an investor to hedge the risk that the price of the commodity will change between the date the contract is entered and the date delivery is due— without having to take physical delivery of the commodity. CFTC v. Co Petro Mktg. Group, Inc., 680 F.2d 573, 579-80 (9th Cir.1982). A futures contract provides that a specific amount of the commodity will be “delivered” to the buyer at a specified date (trade date) at an agreed-upon price. If the buyer does not want to take delivery of the commodity on the trade date, he enters an “off setting transaction” to sell the same amount of the commodity. Id. The investor’s profit or loss depends upon the difference between the amount the investor contracted to pay for the commodity and what he gets for it when he sells it. Excluded from the definition of futures contracts, and thus from CFTC jurisdiction, are “cash forward contracts,” which are “any sale of any cash commodity for deferred shipment or delivery.” 7 U.S.C. § 2. This “narrow” exclusion is predicated on both parties contemplating and intending future delivery of the actual commodity when immediate delivery would be commercially impracticable. Co Petro, 680 F.2d at 578; see also In re Bybee, 945 F.2d at 313 (citing In re Stovall, [1977-1980 Transfer Binder], Comm. Fut.L.Rep. (CCH) ¶ 20,941, at 23,777-778). Noble contends the Forward Delivery Program contracts it sold were cash forward contracts, not futures contracts, and thus were exempt from CFTC jurisdiction. We disagree. The cash forward contract exclusion is “unavailable to contracts of" }, { "docid": "20372823", "title": "", "text": "819, 109 S.Ct. 59, 102 L.Ed.2d 37 (1988) (same). When seeking the original monetary sanction and order to compel, the CFTC explicitly expressed its intention to seek more severe sanctions, including default judgment, if No ble and Moorgate failed to comply with the court’s discovery order. Second, the circumstances surrounding the sanction were egregious. See id. at 132-33. Not only did Noble and Moorgate violate a court order and fail to pay the earlier $500 sanction, they did not seek a protective order even though they had six months to do so. The record also indicates this was not the first time these defendants engaged in dilatory tactics. We conclude the district court did not abuse its discretion in imposing its Rule 37(b)(2) sanction ordering that the allegations of the complaint be taken as established for the purposes of the action. Noble and Moorgate argue that even taking all of the allegations of the complaint as true, they did not violate sections 4(a) or 4b of the Act because, they contend, the Forward Delivery Program contracts they sold were not “futures contracts” regulated by the Act. We disagree. Under section 2(a)(1)(A) of the Act, the CFTC has exclusive jurisdiction over “accounts, agreements ... and transactions involving contracts of sale of a commodity for future delivery, traded or executed on a contract market.” 7 U.S.C. § 2. The Act requires that these “futures contracts” be offered and sold on commission-designated boards of trade, or they are deemed illegal “off-exchange” contracts. In re Bybee, 945 F.2d 309, 312 (9th Cir.1991) (citing 7 U.S.C. § 6(a)). A futures contract enables an investor to hedge the risk that the price of the commodity will change between the date the contract is entered and the date delivery is due— without having to take physical delivery of the commodity. CFTC v. Co Petro Mktg. Group, Inc., 680 F.2d 573, 579-80 (9th Cir.1982). A futures contract provides that a specific amount of the commodity will be “delivered” to the buyer at a specified date (trade date) at an agreed-upon price. If the buyer does not want to" }, { "docid": "7048228", "title": "", "text": "¶ 20, 941 (CFTC Opinion Dec. 6, 1979); Feldman & Sommer, The Special Commodity Provisions of the New Bankruptcy Code, 37 Bus.Law. 1487, 1492-1493 (1982). These crucial distinctions were observed in Bache Halsey Stuart, Inc. v. Affiliated Mortgage Investments, Inc., 445 F.Supp. 644, 646 (N.D.Ga.1977), wherein the court commented: [T]he transactions in question must be distinguished from sales of GNMA futures contracts which are presently being traded on the Chicago Board of Trade. The Board of Trade transactions are highly standardized; the futures contracts are sold at an auction, with the only open term in the transaction being the price. Delivery is very rarely taken in such transactions. In the forward' contracts under consideration, the parties negotiate all the terms of the sale, in-eluding the interest rate, date of delivery, and price, and the purchaser most often takes actual delivery of the underlying certificate. Transactions involving futures contracts require the participation of a clearing house which buys from the seller and sells to the buyer; forward contracts, or contract for delayed delivery, are negotiated directly between the buyer and seller, and no third party is ever involved. Futures contract trading may be carried on through a discretionary account managed by a broker-dealer; the forward contracts involved here require party-to-party negotiation. The current dispute between the SEC and the Commodities Futures Trading Commission (CFTC) concerns jurisdiction over futures contracts trading and possible registration and does not bear on the issue presently before the Court. The issue before the court in Bache Halsey Stuart is not before us, viz., whether GNMA forwards must be registered under the 1933 Act, but the court’s above-stated rationale is pertinent. Thus there are sufficient distinctions between GNMA forwards and GNMA futures to support plaintiff’s position that they may be treated differently for purposes of the securities laws. The decision in P & C Investment Club v. Becker, 520 F.Supp. 120 (E.D.Pa.1981), relied upon by defendants, does not mandate a different outcome. There plaintiff purchased futures contracts in treasury bills. Analogizing this transaction to the purchase of tangible commodities such as cotton, the court held that the" }, { "docid": "18836759", "title": "", "text": "theoretically is delivered. But unless the issuer’s investment efforts are successful, the investor does not receive his profit. The economic reality of the transaction is that the investor makes his money off the “interest.” He, in effect, loans money to the issuer for a “guaranteed” return — a return dependent upon the issuer’s skills. . An analogous observation was made by the Ninth Circuit in SEC v. Commodity Options International, Inc., supra, in the context of commodity futures contracts. The court noted that although futures contracts are investments, they are not investments in an enterprise, but in the “underlying commodity.” Id. at 632. The court then assumed, without deciding the question, “that a conventional option to buy or sell a futures contract takes on the character of the contract that is the option and is no more a security than is the underlying contract.” Id. The SEC apparently has taken a similar position with regard to contracts for delayed delivery of GNMA’s. See Note, “The GNMA Securities Market: An Analysis of Proposals for a Regulatory Scheme,” 9 Fordham Urban L. J. 457, 478 n.l 12 (1980); but see “Securities Trading Practices of Registered Investment Companies,” 44 Fed.Reg. 25,128, 25,131 (April 27, 1979). . LTV implies that the registration requirements of § 5 are necessary to protect investors from fraudulent practices by the issuers of such options. But, as discussed infra, the registration exemption does not affect the applicability of Rule 10b-5. . For example, a corporation could sell options to shares it does not intend to issue for several years. Unless such options are securities, the corporation will have avoided registration, at least until the options are exercised. . This court expresses no opinion as to the applicability of its analysis to the type of GNMA futures traded on the Chicago Board of Trade. See, Note, “The GNMA Securities Market: An Analysis of the Proposals for a Regulatory Scheme,” supra, at 463-67; Guttman, ‘The Futures Trading Act of 1978: The Reaffirmation of CFTC-SEC Coordinated Jurisdiction Over Security/Commodities,” 11 Am.U.L.Rev. 1, 23 n.130 (1978); Bache Halsey Stuart v. Affiliated Mortgage Investments," }, { "docid": "23591681", "title": "", "text": "COLE, Circuit Judge. Plaintiff Randy Bibbo appeals the decision of the district court granting Defendant Dean Witter’s motion to dismiss Bibbo’s complaint pursuant to Fed.R.Civ.P. 12(b)(6). Bibbo brought an action against Dean Witter, alleging that Dean Witter violated Ohio law when it retained interest earned from its investment of Bibbo’s money (referred to as “margin money” or “margin funds”), which was kept on deposit with Dean Witter as a partial guarantee that Bibbo would meet certain obligations under an investment contract. On appeal, we must determine whether a federal regulation, 17 C.F.R. § 1.29 (1986) (“Regulation 1.29”), which permits a Futures Commodities Merchant (“FCM”) such as Dean Witter to retain interest earned on customers’ margin funds, pre-empts an Ohio statutory provision, O.R.C. § 1309.18 (1996), which requires payment to debtors of any profits earned from collateral held by a secured party. The district court concluded that O.R.C. § 1309.18 is pre-empted by federal law and dismissed Bibbo’s complaint. For the following reasons, we AFFIRM the judgment of the district court. I. Bibbo was a customer of Dean Witter, a large licensed securities broker and dealer, which maintained a commodities futures account on his behalf. With this account, Bib-bo could enter into investment contracts for the purchase or sale of commodities for future delivery (“futures”) as a way of speculating on changes in the price of various commodities. A. As the facts of this case arise out of the complex world of futures trading, we begin with a brief mention of the background of that industry. Futures trading is conducted on exchanges designated as contract markets by the Commodities Futures Trading Commission (“CFTC”), an independent agency created by Congress in 1974 to exercise exclusive jurisdiction over accounts, agreements, and transactions involving commodities futures contracts traded or executed on a contract market. Commodities Futures Trading Commission Act of 1974, 7 U.S.C. § 2 (1996) (amending Commodity Exchange Act (“CEA”), 7 U.S.C. §§ 1 et seq. (1996)). Futures trades are executed on a customer’s behalf by an FCM, such as Dean Witter. When a customer enters into a futures transaction with an FCM," }, { "docid": "23591682", "title": "", "text": "of Dean Witter, a large licensed securities broker and dealer, which maintained a commodities futures account on his behalf. With this account, Bib-bo could enter into investment contracts for the purchase or sale of commodities for future delivery (“futures”) as a way of speculating on changes in the price of various commodities. A. As the facts of this case arise out of the complex world of futures trading, we begin with a brief mention of the background of that industry. Futures trading is conducted on exchanges designated as contract markets by the Commodities Futures Trading Commission (“CFTC”), an independent agency created by Congress in 1974 to exercise exclusive jurisdiction over accounts, agreements, and transactions involving commodities futures contracts traded or executed on a contract market. Commodities Futures Trading Commission Act of 1974, 7 U.S.C. § 2 (1996) (amending Commodity Exchange Act (“CEA”), 7 U.S.C. §§ 1 et seq. (1996)). Futures trades are executed on a customer’s behalf by an FCM, such as Dean Witter. When a customer enters into a futures transaction with an FCM, the customer must deposit a certain amount of margin money with the FCM to cover any losses that the customer may incur by virtue of a change in the price of the commodity. Margin money is similar to a performance bond or earnest money, and is required to ensure that the customer will meet 'his or her financial obligation under the terms of the futures contract. After the investor deposits margin money with the FCM, the FCM is then required to deposit that money with the clearing organization to secure the investor’s futures position. Depending on fluctuations in the price of the futures contracts, the investor may be required to deposit additional margin money or may be permitted to withdraw funds from the margin account. B. Upon opening his account, Bibbo signed Dean Witter’s standardized form contract entitled “Commodity Customer Agreement” (the “Agreement”), which stated in § 1 that: In all transactions, [Bibbo] shall be bound by all applicable laws, rules and regulations, including the Commodity Exchange Act, as amended, the regulations then obtaining of" }, { "docid": "16095107", "title": "", "text": "408 (11th Cir.1987). If the investor retains the ability to control the profitability of his investment the agreement is not a security. Id. at 409. However, even if the language of the contract grants the investor sufficient control over the investment, a security may still exist if the control is illusory. Id. at 412; See also, Gordon v. Terry, 684 F.2d 736, 741 (11th Cir.1982); Williamson v. Tucker, 645 F.2d 404, 419-424 (5th Cir.1981). In the instant ease, the language of the customer account agreement that was utilized by Unique from its inception until August 1998, provided that Unique in its sole discretion would exercise trades and apportion gains and losses. There was no language relegating discretion concerning the investment to the investor. The agreement was subsequently modified to include such a provision and investors were told verbally during the “compliance” call that any decisions concerning the investment was the investors’. However, the evidence clearly reveals that any purported control was illusory. Investors did not possess the ability to monitor their investments let alone control the profitability. Accordingly, the third and final prong of the Howey test is satisfied and the investment opportunities offered by Unique are investment contracts and thus securities under federal law. Defendants argue that the investments offered by Unique are currency transactions and thus exempt from regulation. Specifically, Defendants argue that off-exchange trading involving currency transactions falls within the jurisdiction of the Commodities Futures Trading Commission (“CFTC”) and not the SEC. See Commodity Exchange Act (“CEA”), 7 U.S.C. § 1 et seq. Defendants further point out that the Treasury Amendment to the Commodity Exchange Act, 7 U.S.C. § 2(ii) exempts off-exchange foreign currency options from CFTC regulation. Therefore, argue Defendants, off-exchange foreign currency options trading is not subject to regulation by any governmental body including the SEC. Defendants’ argument is misplaced. Nothing in the CEA or the Treasury Amendment limits, preempts or precludes the SEC from regulating the investment opportunity offered by Unique. The investments offered by Unique appear to be fractional interests in a currency trading program. No evidence has been presented indicating that the" }, { "docid": "14691176", "title": "", "text": "Act, which permits service of process “wherever the defendant may be found”. 15 U.S.C. § 78aa. Federal courts may exercise personal jurisdiction under § 27 of the 1934 Act to the limits of due process. Leasco Data Processing Equipment Corp. v. Maxwell, 2 Cir.1972, 468 F.2d 1326, 1340 (Friendly, J.). A. Until 1974 the CEA applied only to transactions in certain agricultural commodities. See 7 U.S.C. § 2 (1970). Courts disagreed over which commodities transactions were covered by the securities statutes, and some transactions fell into a gap between federal securities and commodities laws. The Commodity Futures Trading Commission Act of 1974 (“CFTA”), Pub.L. No. 93-463, 88 Stat. 1389, “the first complete overhaul of the Commodity Exchange Act since its inception”, provides a “comprehensive regulatory structure”. H.R.Rep. No. 975, 93d Cong., 2d Sess. 1. Congress intended the 1974 amendments to “fill all regulatory gaps” while “avoid[ing] unnecessary, overlapping and duplicative regulation.” 120 Cong.Rec. H34736 (Oct. 9, 1974) (remarks of House Agriculture Committee Chairman Robert Poage); 120 Cong.Rec. S34997 (Oct. 10, 1974) (remarks of Senate Agriculture Committee Chairman Herman Talmadge). Section 2(a)(1)(A), set out in the margin, is the critical provision of the CFTA. The statute confers on the Commodities Futures Trading Commission (“CFTC”) exclusive jurisdiction over “accounts ... involving contract of sale of a commodity for future delivery traded or executed on a contract market designated pursuant to § 7 of this title or any other board of trade, exchange, or market”. The London Metals Exchange, although not a designated exchange, is a “board of trade, exchange, or market” within the meaning of § 2. This Court has held that the CFTC has regulatory authority over trading in “London options”. CFTC v. Miller, 5 Cir. 1978, 570 F.2d 1296, 1299. The legislative history of § 2 indicates that the CFTC has exclusive jurisdiction over the transactions at issue. Representative Poage, Chairman of the House Agriculture Committee, remarked from the House floor: I wish to emphasize that the words “any other board of trade, exchange or market” were included ... only for the purpose of giving the Commodity Futures Trading Commission" }, { "docid": "18836760", "title": "", "text": "Scheme,” 9 Fordham Urban L. J. 457, 478 n.l 12 (1980); but see “Securities Trading Practices of Registered Investment Companies,” 44 Fed.Reg. 25,128, 25,131 (April 27, 1979). . LTV implies that the registration requirements of § 5 are necessary to protect investors from fraudulent practices by the issuers of such options. But, as discussed infra, the registration exemption does not affect the applicability of Rule 10b-5. . For example, a corporation could sell options to shares it does not intend to issue for several years. Unless such options are securities, the corporation will have avoided registration, at least until the options are exercised. . This court expresses no opinion as to the applicability of its analysis to the type of GNMA futures traded on the Chicago Board of Trade. See, Note, “The GNMA Securities Market: An Analysis of the Proposals for a Regulatory Scheme,” supra, at 463-67; Guttman, ‘The Futures Trading Act of 1978: The Reaffirmation of CFTC-SEC Coordinated Jurisdiction Over Security/Commodities,” 11 Am.U.L.Rev. 1, 23 n.130 (1978); Bache Halsey Stuart v. Affiliated Mortgage Investments, Inc., supra, at 646. LTV has made no claim concerning the legality of the Standby Commitment under the Commodity Exchange Act, 7 U.S.C. § 1 et seq., and this court expresses no opinion as to the applicability of the Act. See SEC v. G. Weeks Securities, Inc., supra, at 1244 — 46. Nor does this court express any opinion as to the possible preemptive force of the Commodity Exchange Act with regard to LTV’s claims under Rule 1 Ob-5, the Texas Blue Sky Act, and the Tennessee gaming statutes. See infra. . Citing Breeding v. Anderson, 152 Tex. 92, 254 S.W.2d 377 (1953) and Rowland Corp. v. Integrated Systems Technology, Inc., 488 S.W.2d 133 (Tex.Civ.App. — Waco 1972, writ refd n.r.e.), LTV argues that UMIC nevertheless is in violation of the Act for dealing in unregistered securities because the Standby Commitment is not an “exempt security,” as defined by Article 581-6. Neither case is apposite. In Breeding, the Court read certain transaction exemptions as being applicable only to transactions by identified individuals, and not to" }, { "docid": "6093369", "title": "", "text": "plaintiff had the final say as to whether to buy, sell, or wait. If that agreement was breached, it is a matter of state contract law, or possibly a concern for the Commodities Futures Trading Commission in conjunction with the alleged violations of the CEA. Id. at 872 (emphasis added). Other courts have held that even discretionary commodities trading accounts fail the Howey test because no common enterprise exists between the investor and the brokerage firm. In Brodt v. Bache & Co., 595 F.2d 459 (9th Cir.1978) the court said: \"Merely furnishing investment counsel to another for a commission, even when done by way of a discretionary commodities account, does not amount to a ‘common enterprise.’ ” Id. at 462. In the case at bar, NRG admits that the language of the accounts limited Edwards to transactions approved by NRG and therefore were nondiscretionary in form. NRG alleges, however, that the statements and conduct of the defendant rendered the accounts discretionary. We express no opinion as to whether the allegations and conduct are sufficient to transform the nondiscretionary accounts into discretionary accounts, and we do not reach the issue whether discretionary commodities accounts meet the Howey test for purposes of the securities laws. . See The Commodity Futures Trading Commission Act of 1974, Pub.L. No. 93-463, 88 Stat 1389 (codified in scattered sections of 7 U.S.C. §§ 1-24 (1982)). The amendment greatly expanded the definition of a commodity: The word “commodity” shall mean ... all other goods and articles ... and all services, rights and interests in which contracts for future delivery are presently or in the future dealt in: Provided, That the Commission shall have exclusive jurisdiction ... with respect to accounts, agreements ... and transactions involving contracts of sale of a commodity for future delivery, traded or executed on a contract market designated pursuant to section 7 of this title or any other board of trade, exchange, or market, and transactions subject to regulation by the Commission pursuant to section 23 of this title____ 7 U.S.C. § 2 (1982). . See Johnson, The Commodity Futures Trading Commission Act:" }, { "docid": "6093370", "title": "", "text": "transform the nondiscretionary accounts into discretionary accounts, and we do not reach the issue whether discretionary commodities accounts meet the Howey test for purposes of the securities laws. . See The Commodity Futures Trading Commission Act of 1974, Pub.L. No. 93-463, 88 Stat 1389 (codified in scattered sections of 7 U.S.C. §§ 1-24 (1982)). The amendment greatly expanded the definition of a commodity: The word “commodity” shall mean ... all other goods and articles ... and all services, rights and interests in which contracts for future delivery are presently or in the future dealt in: Provided, That the Commission shall have exclusive jurisdiction ... with respect to accounts, agreements ... and transactions involving contracts of sale of a commodity for future delivery, traded or executed on a contract market designated pursuant to section 7 of this title or any other board of trade, exchange, or market, and transactions subject to regulation by the Commission pursuant to section 23 of this title____ 7 U.S.C. § 2 (1982). . See Johnson, The Commodity Futures Trading Commission Act: Preemption as Public Policy, 29 Vand.L.Rev. 1, 32-36 (1976): Strong public policy considerations likewise militate against the idea that private remedies under other regulatory statutes should remain available even after the CFTC’s \"exclusive jurisdiction” has preempted those regulatory agencies____ It is reasonable to assume that Congress, having created a regulatory agency under the same statute, intends for that agency to exercise the requisite judgment and to provide the needed uniformity. Otherwise, the key decisions influencing the scope and direction of federal regulatory policy in that field would be left to a variety of different courts responding to piecemeal advocacy of private interests. Id. at 35. . See George v. Omni Capital International, 795 F.2d 415 (5th Cir.1986). The court in George explained that it is consistent with Congressional intent, as expressed in the CEA, to deny private relief because ”[p]rivate actors under the securities laws might engraft policies and standards inconsistent with those developed under the CEA.” Id. at 422. See also Mallen, v. Merrill Lynch, Pierce, Fenner & Smith, 605 F.Supp. 1105 (N.D.Ga.1985). In" }, { "docid": "3335265", "title": "", "text": "the instant motion. See 2A J. Moore, Federal Practice ¶ 12.15, at 2343. The Court, therefore, must make an independent determination on the issue. The Court notes first that the transactions in question must be distinguished from sales of GNMA futures contracts which are presently being traded on the Chicago Board of Trade. The Board of Trade transactions are highly standardized; the futures contracts are sold at auction, with the only open term in the transaction being the price. Delivery is very rarely taken in such transactions. In the forward contracts under consideration, the parties negotiate all the terms of the sale, including the interest rate, date of delivery, and price, and the purchaser most often takes actual delivery of the underlying certificate. Transactions involving futures contracts require the participation of a clearing house which buys from the seller and sells to the buyer; forward contracts, or contracts for delayed delivery, are negotiated directly between the buyer and seller, and no third party is ever involved. Futures contract trading may be carried on through a discretionary account managed by a broker-dealer; the forward contracts involved here require party-to-party negotiation. The current dispute between the SEC and the Commodities Futures Trading Commission (CFTC) concerns jurisdiction over futures contracts trading and possible registration and does not bear on the issue presently before the Court. Nothing in this order relates to the trading or registration of futures contracts on GNMA certificates. The Court finds that the sales of GNMA certificates for future delivery do not require registration. The GNMA certificates are specifically exempted from registration as securities guaranteed by the United States, 15 U.S.C. § 77c(a)(2). Section 2(3) of the Securities Act provides that “[t]he term ‘sale’ or ‘sell’ shall include every contract of sale or disposition of a security or interest in a security, for value.” 15 U.S.C. § 77b(3). The contracts for sale of the GNMA certificates in this case included provisions naming the price, interest rate, and date of delivery and payment for the securities. The definition of the sale of securities under the Securities Act indicates that a single" }, { "docid": "7048243", "title": "", "text": "to CFTC jurisdiction). See Board of Trade of City of Chicago v. S.E.C., 677 F.2d 1137 (7th Cir.1982), vacated as moot, 459 U.S. 1026, 103 S.Ct. 434, 74 L.Ed.2d 594-595. The jurisdictional issue pertaining to the trading on organized exchanges of financial instrument options such as GNMA options is distinct from our instant inquiry and we need not address it herein. . For a discussion of the jurisdictional overlap and dispute between the SEC and the CFTC with respect to GNMA futures, see Note, The GNMA Securities Market: An Analysis Of Proposals For A Regulatory Scheme, 9 Fordham Urb.L.J. 457 (1980): [The CFTC] has exclusive jurisdiction over transactions involving contracts of sale of a commodity for future delivery traded or executed on a contract market. The regulation of commodity futures, not government securities, is the primary function of the CFTC. However, section 2(1) of the 1933 Act defines the term \"security” to include any right to purchase a security. Because a GNMA futures contract is a right to a purchase a GNMA security, arguably both agencies have jurisdiction over GNMA futures contracts [footnotes omitted]. Id. at 464. . Congress expanded the definition of commodity to include financial instruments such as GNMA certificates in response to industry's desire to trade in their derivatives. 7 U.S.C. § 2 (1974) (amended 1983). See generally Board of Trade of Chicago v. S.E.C., 677 F.2d 1137, 1140 n. 2 (7th Cir.1982). Thus GNMA’s are both securities and commodities and, to recapitulate, the CFTC’s jurisdiction over the trading of GNMA derivatives is now limited to GNMA futures and options on GNMA futures. . Plaintiff does not specifically assert that he without question would have taken delivery of the GNMA’s but for the alleged fraudulent misrepresentations of defendants. Nor does the record indicate that plaintiff is a commercial purchaser of GNMA’s who regularly takes delivery. Irrespective of plaintiff's possible intention to sell the GNMA forward prior to settlement given favorable market conditions, it is undeniable that the contract is a firm commitment which by its terms obligates plaintiff to take delivery in the event that no offsetting" }, { "docid": "14499627", "title": "", "text": "the form of amendments to the Commodity Exchange Act, 7 U.S.C. §§ 1-22, significantly expanded federal regulation of commodity futures trading under a new Commodity Futures Trading Commission. Section 2 of the Act gives the Commission “exclusive jurisdiction with respect to accounts, agreements and transactions involving contracts of sale of a commodity for future delivery, traded or executed on a contract market . . . .” 7 U.S.C. § 2. The evident intent of this language to confer exclusive jurisdiction over commodity futures trading accounts in the Commission is confirmed by the legislative history. The Conference Report states in relevant part — ■ The House bill provides for exclusive jurisdiction of the Commission over all futures transactions. However, it is provided that such exclusive jurisdiction would not supersede or limit the jurisdiction of the Securities and Exchange Commission or other regulatory authorities. The Senate amendment retains the provision of the House bill but adds three clarifying amendments. The clarifying amendments make clear that (a) the Commission’s jurisdiction over futures contract markets or other exchanges is exclusive and includes the regulation of commodity accounts, commodity trading agreements, and commodity options; (b) the Commission’s jurisdiction, where applicable, supersedes State as well as Federal agencies; and (c) Federal and State courts retain their respective jurisdictions. The Conference substitute adopts the Senate amendment, including the provision in section 402(d) of the bill which strikes the last sentence of section 4c of the Commodity Exchange Act. The language being struck provides that “Nothing in this section [section 4c] or section 4b shall be construed to impair any State law applicable to any transaction enumerated or described in such sections.” H.Conf.Rep.No. 93-1383, 93d Cong., 2d Sess., (1974), 1974 U.S.Code Cong, and Admin.News, pp. 5843, 5897. See also Johnson, The Commodity Futures Trading Commission Act: Preemption as Public Policy, 29 Vand.L.Rev. 1, 7-20 (1976). Senator Talmadge, Chairman of the Senate Committee on Agriculture and Forestry, specifically stated that the Act was designed to supersede SEC regulation of commodities trading: It was not intended that the jurisdiction of the Securities and Exchange Commission with respect to investment contracts" }, { "docid": "14691177", "title": "", "text": "Committee Chairman Herman Talmadge). Section 2(a)(1)(A), set out in the margin, is the critical provision of the CFTA. The statute confers on the Commodities Futures Trading Commission (“CFTC”) exclusive jurisdiction over “accounts ... involving contract of sale of a commodity for future delivery traded or executed on a contract market designated pursuant to § 7 of this title or any other board of trade, exchange, or market”. The London Metals Exchange, although not a designated exchange, is a “board of trade, exchange, or market” within the meaning of § 2. This Court has held that the CFTC has regulatory authority over trading in “London options”. CFTC v. Miller, 5 Cir. 1978, 570 F.2d 1296, 1299. The legislative history of § 2 indicates that the CFTC has exclusive jurisdiction over the transactions at issue. Representative Poage, Chairman of the House Agriculture Committee, remarked from the House floor: I wish to emphasize that the words “any other board of trade, exchange or market” were included ... only for the purpose of giving the Commodity Futures Trading Commission jurisdiction over future contracts purchased and sold in the United States and executed on a foreign board of trade, exchange, or market. This grant of exclusive jurisdiction is not to be construed as preempting the jurisdiction of the Securities and Exchange Commission over securities ... traded on any national securities exchange or any other U.S. securities market. 120 Cong.Rec. H34, 737 (1974). The Supreme Court has concluded that Section 2 gives the CFTC “exclusive jurisdiction over commodity futures trading. The purpose of the exclusive-jurisdiction provision in the bill passed by the House was to separate the functions of the Commission from those of the Securities and Exchange Commission and other regulatory agencies.” Curran, 456 U.S. at 386, 102 S.Ct. at 1843. See also Markham, Regulation of International Transactions Under the Commodity Exchange Act, 48 Fordham L.Rev. 129, 133 (1979). Point Landing argues that the SEC retained jurisdiction over the transactions under the saving clause of § 2: [Ejxcept as hereinabove provided, nothing contained in this section shall (i) supersede or limit the jurisdiction at any" }, { "docid": "3335266", "title": "", "text": "discretionary account managed by a broker-dealer; the forward contracts involved here require party-to-party negotiation. The current dispute between the SEC and the Commodities Futures Trading Commission (CFTC) concerns jurisdiction over futures contracts trading and possible registration and does not bear on the issue presently before the Court. Nothing in this order relates to the trading or registration of futures contracts on GNMA certificates. The Court finds that the sales of GNMA certificates for future delivery do not require registration. The GNMA certificates are specifically exempted from registration as securities guaranteed by the United States, 15 U.S.C. § 77c(a)(2). Section 2(3) of the Securities Act provides that “[t]he term ‘sale’ or ‘sell’ shall include every contract of sale or disposition of a security or interest in a security, for value.” 15 U.S.C. § 77b(3). The contracts for sale of the GNMA certificates in this case included provisions naming the price, interest rate, and date of delivery and payment for the securities. The definition of the sale of securities under the Securities Act indicates that a single contract was present in this case; the parties did not engage in the sale of a contract to sell a security. The deposition of defendant Lewis indicates clearly that the parties contemplated only the sale of the securities themselves in their entire course of dealing. Cases analogous to this have established that agreements for delivery and payment in the future do not transform sales of specified commodities into securities contracts. Berman v. Dean Witter & Co., Inc., 353 F.Supp. 669, 671 (C.D. Cal.1973); Sinva, Inc. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 253 F.Supp. 359, 366 (S.D.N.Y.1966). The fact that the underlying commodity in this case is itself a security does not change this result. The defendants urge that registration is necessary for the protection of investors in GNMA certificates who are able to make substantial commitments of funds and take large risks without putting up either cash or certificates. The defendants fail to show, however, that registration would change any of the possibilities for speculation. The amount of speculation inherent in an investment" }, { "docid": "12578513", "title": "", "text": "EASTERBROOK, Circuit Judge. This appeal presents the question whether speculative transactions in foreign currency are “contracts of sale of a commodity for future delivery” regulated by the Commodity Futures Trading Commission. 7 U.S.C. § 2(a)(1)(A). Until recently almost all trading related to foreign currency was outside the CFTC’s remit, even if an equivalent contract in wheat or oil would be covered. See Dunn v. CFTC, 519 U.S. 465, 117 S.Ct. 913, 137 L.Ed.2d 93 (1997) (describing the Treasury Amendment to the Commodity Exchange Act). But Congress modified the Treasury Amendment as part of the Commodity Futures Modernization Act of 2000, and today the agency may pursue claims that currency futures have been marketed deceitfully, unless the parties to the contract are “eligible contract participants”. 7 U.S.C. § 2(c)(2)(B). “Eligible contract participants” under the Commodity Exchange Act are the equivalent of “accredited investors” in securities markets: wealthy persons who can look out for themselves directly or by hiring experts. 7 U.S.C. § la(12); 15 U.S.C. § 77b(a)(15). Defendants, which sold foreign currency to casu al speculators rather than “eligible contract participants,” are not protected by the Treasury Amendment except to the extent that it permits them to deal over-the-counter, while most other futures products are restricted to registered exchanges (called boards of trade) or “derivatives transaction execution facilities” (specialized markets limited to professionals). The agency believes that some of the defendants deceived some of their customers about the incentive structure: salesmen said, or implied, that the dealers would make money only if the customers also made money, while in fact the defendants made money from commissions and markups whether the customers gained or lost. This allegation (whose accuracy has not been tested) makes it vital to know whether the contracts are within the CFTC’s regulatory authority. The district judge concluded that the transactions are sales in a spot market rather than futures contracts. 2003 WL 22284295, 2003 U.S. Dist. LEXIS 17660 (N.D.I11. Oct. 3, 2003). AlaronFX deals in foreign currency. Two corporations doing business as “British Capital Group” or BCG solicited customers’ orders for foreign currency. (Michael Zelener, the first-named defendant," }, { "docid": "12560444", "title": "", "text": "— precisely what the latter had sought. Since, however, the record contains matter outside the pleadings highly relevant to the issues, it may be that the Board’s motion should more properly have been taken as one for summary judgment. See Fed.R. Civ.P. 12(c). We so treat the Board’s motion in order that we may give the record before us its broadest consideration. See text infra at notes 83-85. . See Part II infra. . See Part III infra. . The Commodity Futures Trading Commission is an independent regulatory agency created by the Commodity Futures Trading Act of 1974. Commodity Exchange Act, 42 Stat. 998 (1922), as amended by the Commodity Futures Trading Commission Act of 1974, Pub.L. No. 93-463, 88 Stat. 1389, 7 U.S.C. §§ 1 et seq. (1976) [hereinafter cited as codified]. . Initially, the Commission sought reports from the Board on both the plywood and stud lumber futures contracts. The request was withdrawn with respect to the latter after the Commission was informed that stud lumber futures were no longer actively traded on the Board. See Letter from Warren W. Lebeck, President of the Chicago Board of Trade, to Stanley S. Ostrowski, Acting Director of the Market Analysis Division of the CFTC, July 12, 1976, Appendix (App.) 21; Letter from Mark J. Powers, Chief Economist of CFTC, to Warren W. Lebeck, President of the Chicago Board of Trade, Sept. 8, 1976, App. 23. . It is unlawful to offer for sale or to effect the sale of a futures contract otherwise than “by or through a member of a board of trade which has been designated by the Commission as a contract ‘market’ ” for that commodity. 7 U.S.C. § 6 (1976). . A board of trade seeking designation as a contract market must “demonstrate[] that transactions for future delivery in the commodity for which designation as a contract market is sought will not be contrary to the public interest.” 7 U.S.C. § 7(g) (1976). In addition to meeting this statutory standard, the board must comply with Commission guidelines. . See 7 U.S.C. § 2 (1976). . Commodity" } ]

[ { "docid": "102785", "title": "", "text": "or that the defendants have violated the law in ways that have not been alleged. Estate Constr. Co. v. Miller & Smith Holding Co., 14 F.3d 213, 221 (4th Cir.1994) (citation omitted). Within this frame of reference, the Court will analyze Continental’s motion as it relates to each of Bay’s tort claims against it. 1. Count I Common Law and Statutory Conspiracy In sum, Plaintiffs conspiracy claim against Continental alleges that Bell and Continental intentionally “combined, associated, agreed or acted in concert” to put Bay out of business. MFJ ¶ 58. To this end, Bay avers that in November of 2002 one of its owners “heard from one [its] own distributors, Cooper Booth, that Bay was ‘going out of business.’ ” Id. ¶ 51. Subsequently, Bay learned that Bell had “secretly entered into an agreement with [sic ] a Continental” to produce cigarettes for Continental instead of Bay. Id. ¶ 52. “Continental knew that ... by publishing false and defamatory statements that Bay Tobacco was going out of business, Bay ... would lose customers.” Id. Moreover, Bay’s owner was told that Bell’s owner, Jim Heflin, had instructed Bell to stop producing for Bay and to produce only for Continental. Id. ¶ 53. Plaintiff then avers that these facts, when added together, amount to the defendants’ commission of both common law and statutory conspiracy. That is to say, Bay avers that (1) Bell’s misrepresentation of its intent to manufacture for Bay, (2) Bell’s delay in production, (3) Continental’s publication of the statement that Bay was “going out of business,” and (4) the Defendants’ withholding of Bay’s packaging materials, taken together, prove that the two defendants conspired to destroy Bay’s business. Id. ¶¶ 58-60. On the pleadings, this count is woefully inadequate. Section 18.2-499 of the Virginia Code imposes criminal liability upon “[a]ny two or more persons who shall combine, associate, agree, mutually undertake or concert together for the purpose of willfully and maliciously injuring another in his reputation, trade, business, or profession by any means whatsoever.” Va.Code § 18.2-499 (1950, as amended). Section 18.2-500 of the Virginia Code (1950, as amended)" } ]

[ { "docid": "12951238", "title": "", "text": "§§ 15, 26 (West 1997). . Count five relies on Va.Code Ann. § 18.2-499 (Michie 1996) which states that \"[a]ny two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever ... shall be ... guilty of a Class 1 misdemeanor.” Civil remedies are provided for in Va.Code Ann. § 18.2-500 (Michie 1996). .Count seven asserts a common law conspiracy. \"A common law conspiracy consists of two or more persons combined to accomplish, by some concerted action, some criminal or unlawful purpose or some lawful purpose by a criminal or unlawful means.” Commercial Bus. Sys., Inc. v. BellSouth Servs., Inc., 249 Va. 39, 453 S.E.2d 261, 267 (1995). . Count two is based on 15 U.S.C.A. § 2 (West 1997) which provides that \"[ejvery person who shall ... attempt to monopolize ... any part of the trade or commerce among the several States ... shall be deemed guilty of a felony.” Civil remedies are provided for in 15 U.S.C.A. §§ 15, 26 (West 1997). .Section 1962(a) of RICO provides, \"It shall be unlawful for any person who has received any income ... from a pattern of racketeering activity ... to use or invest ... any part of such income ... in ... the ... operation of[ ] any enterprise which is engaged in, or the activities of which affect, interstate or foreign commerce.” 18 U.S.C.A. § 1962(a). Civil remedies for violations of this statute are provided for under 18 U.S.C.A. § 1964(c) (West 2000). . The plaintiffs originally included securities fraud as part of the RICO claim, but have now withdrawn that allegation because there has been no criminal conviction for securities fraud, as required by RICO. See 18 U.S.C.A. § 1964(c). . Section 38.2-200 provides that the State Corporation Commission \"is charged with the execution of all laws relating to insurance and insurers. All companies ... transacting or licensed to transact the business of insurance in this Commonwealth are subject to inspection, supervision and regulation by" }, { "docid": "22567726", "title": "", "text": "directly or indirectly, in the conduct of such enterprise’s affairs through a pattern of racketeering activity. 18 U.S.C. § 1962(d) (1988) provides: It shall be unlawful for any person to conspire to violate any of the provisions of subsection (a), (b), or (c) of this section. . The relevant portion of 42 U.S.C. § 1983 (1988) states: Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State ... subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured. .Va.Code Ann. § 18.2-499 (1988) provides in part: (a) Any two or more persons who shall combine, associate, agree, mutually undertake or concert together for the purpose of willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever, or for the purpose of willfully and maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act, shall be jointly and severally guilty of a Class 3 misdemeanor. Va.Code Ann. § 18.2-500(a) (1988) provides civil relief, including treble damages, for one \"injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499.” . For this proposition, the court cited three district court cases from around the country: Albanese v. City Fed. Sav. & Loan Ass’n, 710 F.Supp. 563 (D.N.J.1989); In re Citisource, Inc. Securities Litigation, 694 F.Supp. 1069, 1079 (S.D.N.Y.1988); Massey v. City of Oklahoma City, 643 F.Supp. 81, 85 (W.D.Ok.1986). . Throughout this opinion, we use language such as \"sanctions in favor of ...,” \"awarded sanctions to ...,” “sanctions awarded to ...,” and other similar expressions. We use these expressions merely as part of identifying the particular grounds on which the district court awarded sanctions against appellants and to identify the issues we are discussing. By use of this language, we do not mean to imply that Rule 11 focuses on damages incurred by the offended party." }, { "docid": "13160604", "title": "", "text": "omitted). “Legal malice” requires showing “that the defendant acted intentionally, purposefully, and without lawful justification” to injure the plaintiff. Simmons v. Miller, 261 Va. 561, 544 S.E.2d 666, 677 (2001). A plaintiff need not prove that the defendant’s primary and overriding purpose was to injure the plaintiffs reputation, trade, or business, but, importantly, the plaintiff must prove that such a purpose was at least one of the purposes of the conspiracy. See Simmons, 544 S.E.2d at 676-77. Here, Defendant argues that even taking as true Plaintiffs allegations that actions by Ewald, Main, and Bank officials were unlawful or improper, Plaintiff “does not allege any concerted action ... or the existence of any preconceived plan” and “fails ... to allege even a single fact showing how Ewald and Main actually worked together or what actions they took, or what preconceived plan they were supposedly executing.” (Def.’s Mot. to Dismiss 5) I agree with Defendant. Plaintiff here essentially bases his conclusion that there must have been a conspiracy on a “but for” argument: “Ewald would have been unable to continue the freeze of funds had Main not provided him with the information he did, and Main individually has no way of effecting Bank policy in his client’s (Grieb’s) favor. Thus it became a mutual undertaking because it had to, neither alone able to achieve the result desired, which they did when their efforts were combined.” (Mem. in Opp’n to Def.’s Mot. to Dismiss 4) In other words, Plaintiff argues that but for Ewald’s actions and Main’s actions, he would not have been injured. But to read a “but for” test of “conspiracy” and “concerted action” into Virginia’s civil conspiracy statute would mean that two people acting independently would be civilly liable any time their independent acts resulted in a harm to a person’s reputation, trade, business or profession, regardless of whether the two people actually came to an agreement (whether explicit or implicit) regarding the purpose of their actions. Such a reading would be far too expansive. Other courts have granted motions to dismiss under Rule 12(b)(6) on allegations that are arguably" }, { "docid": "12951237", "title": "", "text": "chiropractic are all alleged to practice in Virginia and the patients of chiropractic are all alleged to reside in Virginia and be covered by Trigon health care plans. . The plaintiffs aver in their complaint that all of the defendants are wholly owned subsidiaries of Trigon Healthcare, Inc. (Compl.HH31-34.) The plaintiffs initially named as a party defendant Blue Cross and Blue Shield Association, but following submission of the present motion, have voluntarily dismissed that defendant. . As further evidence of alleged discrimination against the practice of chiropractic by the medical community at large, the plaintiffs point to the American Medical Association's \"Committee on Quackery,” created for the purpose of eliminating chiropractic medicine (Comply 48), and internal memoranda from the American Medical Association in which are discussed \"various methods of excluding doctors of chiropractic” from insurance coverage. (Compl.Ex. A.) . Count one is based on 15 U.S.C.A. § 1 (West 1997) which provides that \"[ejvery ... conspiracy, in restraint of trade ... is hereby declared to be illegal.” Civil remedies are provided for in 15 U.S.C.A. §§ 15, 26 (West 1997). . Count five relies on Va.Code Ann. § 18.2-499 (Michie 1996) which states that \"[a]ny two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever ... shall be ... guilty of a Class 1 misdemeanor.” Civil remedies are provided for in Va.Code Ann. § 18.2-500 (Michie 1996). .Count seven asserts a common law conspiracy. \"A common law conspiracy consists of two or more persons combined to accomplish, by some concerted action, some criminal or unlawful purpose or some lawful purpose by a criminal or unlawful means.” Commercial Bus. Sys., Inc. v. BellSouth Servs., Inc., 249 Va. 39, 453 S.E.2d 261, 267 (1995). . Count two is based on 15 U.S.C.A. § 2 (West 1997) which provides that \"[ejvery person who shall ... attempt to monopolize ... any part of the trade or commerce among the several States ... shall be deemed guilty of a felony.” Civil" }, { "docid": "13160612", "title": "", "text": "is the very nature of a conspiracy that two people agree together on some purpose. See, e.g., Va.Code Ann. § 18.2-499 (West 2007) (\"Any two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of ... willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever ....\" (emphasis added)); Model Penal Code § 5.03(1) (\"A person is guilty of conspiracy with another person ... to commit a crime if with the pwpose of promoting ... its commission he ... agrees with such other person ... or agrees to aid such other person .... \"(emphasis added)). . Notably, a principal and his agent cannot engage in concerted action. Mich. Mut. Ins. Co. v. Smoot, 128 F.Supp.2d 917, 925 (E.D.Va.2000) (\"Generally, an agent cannot conspire with its principal.”); Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797, 801 (1985) (\"Of course, there must be two persons to [constitute] a conspiracy, and a corporation, like an individual, cannot conspire with itself.”). Therefore, here, Plaintiff must be able to show that the concerted action involved (1) Main and (2) either Ewald or the Bank officials (collectively \"Bank”). . Following the hearing on Defendant’s motion to dismiss, Plaintiff filed a supplemental memorandum opposing the motion. In the memo, Plaintiff cites three cases for the proposition that a preconceived plan need not be alleged or proved in order to succeed on a civil conspiracy claim. Plaintiff either misinterprets these cases or the cases are inappo-site. First, Plaintiff cites Garrett v. Langley Federal Credit Union, 121 F.Supp.2d 887 (E.D.Va.2000). In Garrett, the plaintiffs were former employees of one of the defendants who were fired or forced to resign after an investigation by a national credit union administration official revealed that the plaintiffs suggested to the official that at least two high-ranking employees in their company were acting improperly. In denying the defendants' motion for summary judgment, the court noted that the official had later met with the high-ranking employees and had essentially disclosed the plaintiffs' identities to the executives under suspicious circumstances." }, { "docid": "18618049", "title": "", "text": "Count II Count II of the complaint alleges that on or about December 22 to 24, 1975, meetings were held between officials of Allied, Travelers and its underwriters, and Allied’s public relations firm. According to plaintiff, at the meeting Allied and Travelers did associate, agree, mutually undertake or concert together for the purpose of maliciously and willfully injuring him in his reputation, trade, or business, in violation of Va .Code Ann. § 18.2-499. Section 18.2-499 makes it illegal to conspire “for the purpose of wilfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever . . .” The statute provides a remedy for wrongful conduct directed to the business. Since the statute itself prescribes no limitation, the applicable period of limitations is determined by Section 8-24. Federated Graphics Companies, Inc. v. Napotnik, 424 F.Supp. 291 (E.D.Va.1976). Allied and Travelers argue that Count II is actually a personal suit for defamation subject to the one-year period, and thus time-barred. Ordinarily, the Court would disagree. Although the alleged conduct might fairly be characterized as an action personal in nature (defamation and malicious prosecution), Section 18.2-499 “is applicable to any malicious conduct which injures a business.” Id. at 294. The statute does not restrict its coverage to corporations; by speaking of injury to “another in his reputation, trade, business or profession,” Section 18.2-499 also protects individuals who own and operate a business. As co-owner of LSP, and an active participant in the management of LSP, Moore was arguably within the coverage of the statute insofar as the complaint alleged that the conspiracy injured LSP’s reputation, trade, or business. However, the Court is convinced from the deposition of plaintiff Moore that the real nature of Count II is slander and libel. In interrogatories 18A, 20, 24, 25, and 31, Moore described in detail the monetary and investment losses which he had incurred as a result of the alleged conduct of Travelers and Allied. Yet, in his deposition, Moore testified as follows: Q I take it, therefore, that with respect to the out-of-pocket losses that you assert for the" }, { "docid": "6557659", "title": "", "text": "T, supra, plaintiff does not set forth a case, because continuing to do business is “not the type of expectancy protected by Virginia law,” and under Virginia law, “[t]he expectancy of remaining in business is too general to support a tortious interference claim ...” Id. at 1340. Rather, Marina Shores must identify a particular expectancy that is reasonably certain would have been realized. Id. Marina Shores contends that it is enough that it had members who it expected would renew their memberships in ensuing seasons of operations. The Court disagrees. Perhaps if there were members who had withdrawn mid-season or members who informed Marina Shores that they would renew and then suddenly changed their minds plaintiff might have a specific enough claim. As pled, however, Marina Shores is arguing nothing more than a general expectancy to remain in business with all its customers, Accordingly, this claim is barred by AT & T. D. Sales of Goods and Services to Former Members of Marina Shores. Marina Shores maintains that the same arguments that support McLeskey’s tortious interference with former members applies to the loss of sales of goods and services to those former members. However, as with the loss of former members, Marina Shores has not pled a specific expectancy rather than a general expectancy to stay in business. Marina Shores cannot point to specific sales it would have made, nor can it offer the Court evidence of damages, other than some evidence of loss of fuel sales. In addition, the Court finds that McLeskey could not have knowledge of sales at unidentified times in the future of unidentified goods and services to unidentified members. The Court finds this claim is speculative, and is insufficient under the law to go forward. XII. THE VIRGINIA CONSPIRACY ACT CLAIMS (COUNTS XIV AND XV). The Virginia Conspiracy Act makes it illegal for “two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever ...” Va.Code Ann. § 18.2-499 (Michie 1994). As" }, { "docid": "7499067", "title": "", "text": "include either an unlawful act or an unlawful purpose.” Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F.Supp.2d 483, 499 (E.D.Va.2003). Here, Skillstorm fails to state a claim for common law conspiracy because it fails to allege an “unlawful act.” Skill-storm alleges that “EDS and Ingenium have taken steps to sharply reduce Plaintiffs services for the NMCI Contract with the intention of ending those services altogether.” (V. Compl. ¶ 73.) However, the purchase orders expressly allow Defendants to terminate the purchase orders “for any reason without penalty.” (V. Compl. ¶¶ 59-60.) Therefore, terminating the purchase orders does not constitute unlawful activity as required to state a common law conspiracy claim. See Hechler Chevrolet, 337 S.E.2d at 748 (“[T]here can be no conspiracy to do an act the law allows.”). 2. Statutory conspiracy Similarly, to state a claim for conspiracy to harm a business under Virginia law, a plaintiff must allege 1) a combination of two or more persons for the purpose of willfully and maliciously injuring the plaintiff in his business; and 2) resulting damage to the plaintiff. Va.Code Ann. §§ 18.2-499-500. See also Allen Realty Corp. v. Holbert, 227 Va. 441, 318 S.E.2d 592, 596 (1984) (internal citations omitted). An act is “willful and malicious” if “undertaken to injure the plaintiff intentionally, purposefully, and without legal justification.” Simmons v. Miller, 261 Va. 561, 544 S.E.2d 666, 667 (2001)). A plaintiff must support its business conspiracy claim with more than conclusory allegations. Mansfield v. Anesthesia Assocs., No. 1:07cv941, 2008 WL 1924029 at *4, 2008 U.S. Dist. LEXIS 34732 at *12 (E.D.Va. Apr. 28, 2008). Here, Skillstorm’s statutory conspiracy claim fails because Skillstorm has not made factual allegations to show that Defendants acted “willfully and maliciously.” “Legal malice” requires Schlegel v. Bank of Am., N.A., 505 F.Supp.2d 321, 326 (W.D.Va.2007) (quoting Simmons, 544 S.E.2d at 676-77). As mentioned above, Defendants were free to terminate the purchase orders at any time. Furthermore, the purchase orders did not prohibit Defendants from soliciting Skill-storm employees. Consequently, there is no factual support for the allegation that Defendants terminated the purchase orders to willfully" }, { "docid": "13160607", "title": "", "text": "acted improperly, all to Plaintiffs detriment. Ergo, he says, those three must have acted in concert. Plaintiff simply has not alleged any facts that would allow the court to infer that any Main and the Bank acted together. His claim must therefore be dismissed. Even if Plaintiff had sufficiently alleged concerted action, however, he has failed to allege legal malice. Again, to succeed, Plaintiff would have to show that the Defendant had as one of its purposes injury to Plaintiffs reputation, trade, or business. See Simmons v. Miller, 261 Va. 561, 544 S.E.2d 666, 676-77 (2001). But here, Plaintiff has not alleged that Defendant acted with the required mens rea: intentionally and purposefully. Additionally, nothing in Plaintiffs complaint would support such an inference. Because Plaintiff has failed to allege such a purpose and because there are no facts in his complaint that would support an inference of such a purpose, his complaint is legally insufficient. And if all this were not enough, Plaintiff must plead business conspiracy with particularity, which he has failed to do here. See Gov’t Employees Ins. Co. v. Google, Inc., 330 F.Supp.2d 700, 706 (E.D.Va.2004) (“However, business conspiracy, like fraud, must be pleaded with particularity, and with more than mere eonclusory language. The heightened pleading standard prevents every business dispute [from] becoming a business conspiracy claim.” (internal quotation marks omitted)). Therefore, because Plaintiff has not pled his business conspiracy claim with particularity — indeed, he has failed to even plead two of the elements of business conspiracy (concerted action and legal malice) — -Plaintiffs complaint must fail. To put it more simply, even if Plaintiff could prove all of the allegations in his complaint, he would be unable — as a matter of law — to recover under Virginia Code § 18.2-500. One final note: I would be willing to grant Plaintiff leave to amend his complaint to allege facts that could allow his cáse to survive a motion to dismiss, but Plaintiff gave no indication at oral argument that he could make such allegations even if he chose to do so. As such, Plaintiffs complaint" }, { "docid": "764989", "title": "", "text": "his reputation. Plaintiff contends that such conduct on the part of defendants violated Va.Code § 18.2-499 and, consequently, that defendants are liable to him for the damage caused his personal reputation. Defendants, on the other hand, maintain that the cited statutory provisions only deal with harm to business reputation, not in issue in the present case. Va.Code § 18.2-499(a) provides as follows: Any two or more persons, who shall combine, associate, agree, mutually undertake or concert together for the purpose of wilfully and maliciously injuring another in his reputation, trade, business or profession . . . shall be jointly and severally guilty of a class three misdemeanor. . Va.Code § 18.2-500, moreover, provides a civil remedy for “[a]ny person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499 . . Several factors compel us to hold that no cause of action will lie under § 18.2-500 where, as in this case, plaintiff alleges harm to his personal reputation and not to any business interest. For one, “reputation,” as employed in both §§ 18.2-499 and 500, must be read in its proper context. In each provision, meaning of the term is shaped by the references to “trade, profession or business” that follow it. Moreover, in setting forth a partial explanation of what damages may be recovered under the section, § 18.2-500 refers to lost profits as a recoverable item. Clearly, then, the focus of §§ 18.2 — 499 and 500 is upon conspiracies resulting in business-related damages. Recently, another federal court has dealt with the civil remedy afforded by § 18.2-500, albeit in a case involving a question of the applicable statute of limitations. In Federated Graphics Companies, Inc. v. Napotnik, 424 F.Supp. 291, 293 (E.D.Va.1976), the Court described § 18.2-500 as a “statutory action . for wrongful conduct directed to the business.” Thus, as plaintiff complains only of defendants’ misconduct adversely affecting his personal reputation, he does not have a remedy available under § 18.2-500. Count II of plaintiff’s complaint must be dismissed. 2. Count VI Plaintiff has alleged generally" }, { "docid": "6557660", "title": "", "text": "interference with former members applies to the loss of sales of goods and services to those former members. However, as with the loss of former members, Marina Shores has not pled a specific expectancy rather than a general expectancy to stay in business. Marina Shores cannot point to specific sales it would have made, nor can it offer the Court evidence of damages, other than some evidence of loss of fuel sales. In addition, the Court finds that McLeskey could not have knowledge of sales at unidentified times in the future of unidentified goods and services to unidentified members. The Court finds this claim is speculative, and is insufficient under the law to go forward. XII. THE VIRGINIA CONSPIRACY ACT CLAIMS (COUNTS XIV AND XV). The Virginia Conspiracy Act makes it illegal for “two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever ...” Va.Code Ann. § 18.2-499 (Michie 1994). As stated above, plaintiffs claim that McLeskey conspired with other persons injure them in their businesses. The Court notes that where the directors and officers of a corporation can be shown to have a personal stake in achieving a corporation’s illegal objective, they can be treated as separate entities for conspiracy purposes. See Selman v. American Sports Underwriters, Inc., 697 F.Supp. 225, 289 (W.D.Va.) (stating: “The Fourth Circuit has found that, pursuant to Virginia law, the doctrine [of intracorporate immunity] does not apply when an agent of the corporation has an ‘independent personal stake in achieving the corporation’s illegal objective.’ ”) (citations omitted). However, for the reasons stated in Part V. A., the Court GRANTS defendant’s motion for summary judgment on Counts XIV and XV. XIII. CONCLUSION For the reasons discussed above, the Court GRANTS summary judgment to the defendant on all counts of plaintiffs’ complaint. The Clerk is DIRECTED to send a copy of this order to counsel for the plaintiffs and to counsel for the defendant. It is so ORDERED. . Even though the" }, { "docid": "7972363", "title": "", "text": "at 557, 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. In reviewing a plaintiffs claim, the court must construe all of the plaintiffs factual allegations as true, and must draw all reasonable inferences in the plaintiffs favor. However, legal conclusions and conclusory allegations merely reciting the elements of the claim are not entitled to this presumption. Iqbal, 129 S.Ct. at 1951. In relevant part, section 134.01 states: “Any 2 or more persons who shall combine, associate, agree, mutually undertake or concert together for the purpose of willfully or maliciously injuring another in his or her reputation, trade, business or profession by any means whatever ... shall be punished by imprisonment in the county jail not more than one year or by fine not exceeding $500.” The statute is a criminal statute, but Wisconsin courts have found an implied private right of action for victims of such conspiracies. Radue v. Dill, 74 Wis.2d 239, 246 N.W.2d 507, 511 (1976). Wisconsin defines a civil conspiracy as “a combination of two or more persons by some concerted action to accomplish some unlawful purpose or to accomplish by unlawful means some purpose not in itself unlawful.” Id. at 509. Thus, to prevail at trial on a section 134.01 claim, a plaintiff must prove that (1) the defendants acted together; (2) with a common purpose to injure the plaintiffs reputation or business; (3) with malice; and (4) the plaintiff suffered financial harm. See Wis. Jury Instructions Civil 2820. The district court found that Virnich failed to plead a plausible conspiracy under section 134.01. In the district court’s view, “Polsky, a professional receiver, was contacted by a creditor about a possible position as a receiver for a company that was having financial troubles and was delinquent on a loan.... Polsky accepted the position because it is his profession and he was being compensated.” Virnich, 2010 WL 3489770, at *11. In support of the district court’s interpretation of" }, { "docid": "13160603", "title": "", "text": "(W.D.Va.2001), aff'd on other grounds sub nom., Va. Vermiculite, Ltd. v. Historic Green Springs, Inc., 307 F.3d 277 (4th Cir.2002); see also MultiChannel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 108 F.3d 522, 526 (4th Cir.1997). “Concerted action” reflects the statutory requirement that a plaintiff ultimately prove that someone “combined, associated, agreed, mutually undertook, or concerted together” with someone else in the injurious conduct. See Va.Code Ann. § 18.2-499 (West 2007); Simmons v. Mil- Ur, 261 Va. 561, 544 S.E.2d 666, 677 (2001). This means that a plaintiff must prove that the defendants “combined together to effect a preconceived plan and unity of design and purpose.” Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F.Supp.2d 483, 499 (E.D.Va.2003) (internal quotation marks omitted). After all, this “common design is the essence of the conspiracy.” Id. To survive a motion to dismiss, then, a plaintiff “must at least plead the requisite concert of action and unity of purpose,” id., and must do so “in more than mere conclusory language,” id. (internal quotation marks omitted). “Legal malice” requires showing “that the defendant acted intentionally, purposefully, and without lawful justification” to injure the plaintiff. Simmons v. Miller, 261 Va. 561, 544 S.E.2d 666, 677 (2001). A plaintiff need not prove that the defendant’s primary and overriding purpose was to injure the plaintiffs reputation, trade, or business, but, importantly, the plaintiff must prove that such a purpose was at least one of the purposes of the conspiracy. See Simmons, 544 S.E.2d at 676-77. Here, Defendant argues that even taking as true Plaintiffs allegations that actions by Ewald, Main, and Bank officials were unlawful or improper, Plaintiff “does not allege any concerted action ... or the existence of any preconceived plan” and “fails ... to allege even a single fact showing how Ewald and Main actually worked together or what actions they took, or what preconceived plan they were supposedly executing.” (Def.’s Mot. to Dismiss 5) I agree with Defendant. Plaintiff here essentially bases his conclusion that there must have been a conspiracy on a “but for” argument: “Ewald would have been" }, { "docid": "1229015", "title": "", "text": "Trade or Business Virginia Code §§ 18.2-499 and 18.2-500 provide a statutory scheme establishing criminal and civil remedies for persons injured in their trade, profession, or business by two or more other persons acting purposefully, willfully, and maliciously. Several courts have held that the civil remedies of these sections are applicable only when the malicious conduct is directed to one’s business. Federated Graphics Companies, Inc. v. Napotnik, 424 F.Supp. 291 (E.D.Va., 1976); Moore v. Allied Chemical Corporation, 480 F.Supp. 364 (E.D.Va., 1979). Plaintiff alleges that the defendants conspired to obtain and publish the interview and that his fund raising activities have been adversely affected as a result of the publication. Consequently, he urges that he is entitled to recovery under Va.Code § 18.2-500. It is with some reservation and regret that the court considers this claim, inasmuch as it necessarily equates business activity with the work of an outreach ministry. However, it is unnecessary to reach this distinction inasmuch as it appears that the claim is defective on its face. There is simply no basis at this time for the general allegation that any of the defendants conspired for the specific purpose of injuring the plaintiff. While plaintiff has alleged a factual scenario from which it might be inferred that Penthouse conspired with Duncan and Brata to obtain the interviews and/or publish the article in violation of the alleged interview conditions, plaintiff has alleged no facts or circumstances which even remotely suggest that defendants acted for any more sinister purpose than to sell magazines. Plaintiff’s complaint in this regard sets forth nothing more than mere speculation. While there is always a thin line present in matters which concern a party’s motivation, the court is of the opinion that this line must be rigorously observed when possible restriction of First Amendment activities is at stake. Reverend Falwell is undoubtedly sincere in his beliefs. However, the rules of procedure do not require a party to proceed based on nothing more than the opposing party’s personal opinion. While the court can only conclude that the allegations of this complaint do not state a" }, { "docid": "764988", "title": "", "text": "diversity jurisdiction until the time for serving defendants has come to an end. Pursuant to an order of the Court dated January 21, 1980, plaintiff was given an additional 90 days in which to obtain service of process over defendants. At present, a few days yet remain in plaintiff’s extension. If, at the end of the allotted period, plaintiff has identified and served a “Doe” defendant with process, and it seems apparent that the defendant, like plaintiff, is a citizen of New York, we will dismiss the suit altogether for want of subject matter jurisdiction. Otherwise, plaintiff may continue with his lawsuit in this court. B. The Challenged State Claims Defendants challenge Counts II, VI and VIII as containing allegations that fail to state claims cognizable under Virginia state law. We proceed to deal with each of the challenged counts below. 1. Count II Plaintiff alleges in Count II that various defendants conspired to represent plaintiff as being of unsound mind in an effort to obtain a conservatorship over him, and in so doing, harmed his reputation. Plaintiff contends that such conduct on the part of defendants violated Va.Code § 18.2-499 and, consequently, that defendants are liable to him for the damage caused his personal reputation. Defendants, on the other hand, maintain that the cited statutory provisions only deal with harm to business reputation, not in issue in the present case. Va.Code § 18.2-499(a) provides as follows: Any two or more persons, who shall combine, associate, agree, mutually undertake or concert together for the purpose of wilfully and maliciously injuring another in his reputation, trade, business or profession . . . shall be jointly and severally guilty of a class three misdemeanor. . Va.Code § 18.2-500, moreover, provides a civil remedy for “[a]ny person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499 . . Several factors compel us to hold that no cause of action will lie under § 18.2-500 where, as in this case, plaintiff alleges harm to his personal reputation and not to any business interest. For" }, { "docid": "7499068", "title": "", "text": "resulting damage to the plaintiff. Va.Code Ann. §§ 18.2-499-500. See also Allen Realty Corp. v. Holbert, 227 Va. 441, 318 S.E.2d 592, 596 (1984) (internal citations omitted). An act is “willful and malicious” if “undertaken to injure the plaintiff intentionally, purposefully, and without legal justification.” Simmons v. Miller, 261 Va. 561, 544 S.E.2d 666, 667 (2001)). A plaintiff must support its business conspiracy claim with more than conclusory allegations. Mansfield v. Anesthesia Assocs., No. 1:07cv941, 2008 WL 1924029 at *4, 2008 U.S. Dist. LEXIS 34732 at *12 (E.D.Va. Apr. 28, 2008). Here, Skillstorm’s statutory conspiracy claim fails because Skillstorm has not made factual allegations to show that Defendants acted “willfully and maliciously.” “Legal malice” requires Schlegel v. Bank of Am., N.A., 505 F.Supp.2d 321, 326 (W.D.Va.2007) (quoting Simmons, 544 S.E.2d at 676-77). As mentioned above, Defendants were free to terminate the purchase orders at any time. Furthermore, the purchase orders did not prohibit Defendants from soliciting Skill-storm employees. Consequently, there is no factual support for the allegation that Defendants terminated the purchase orders to willfully and maliciously injure Skillstorm in its business. Hence, the conspiracy claims fails. ‘that the defendant acted intentionally, purposefully, and without lawful justification’ to injure the plaintiff. [P]laintiff need not prove that the defendant’s primary and overriding purpose was to injure the plaintiffs reputation, trade, or business, but, importantly, the plaintiff must prove that such a purpose was at least one of the purposes of the conspiracy. C. Count III; Defamation The Court grants EDS’s Motion to Dismiss Skillstorm’s defamation claim because Skillstorm failed to sufficiently plead defamation under the Federal Rules of Civil Procedure 8(a). A plaintiff alleging defamation must provide “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.CivP. 8(a)(2). To state a defamation claim under Virginia law, a plaintiff must show 1) publication 2) of an actionable statement with 3) the requisite intent. Echtenkamp v. Loudon County Public Schs., 263 F.Supp.2d 1043, 1061 (E.D.Va.2003). To be “actionable,” the statement must not only be false, but defamatory, that is, it must “tend[] so to harm the" }, { "docid": "8603980", "title": "", "text": "expressly or tacitly, to commit a wrong about which he or she has no knowledge, in order for civil conspiracy to arise, the parties must be aware of harm or wrongful conduct at beginning of combination or agreement. Thus, civil conspiracy is an intentional tort requiring a specific intent to accomplish the contemplated wrong .... AMJUR CONSPIRACY § 51 (2d ed.2004). Since civil conspiracy requires a specific intent to accomplish the contemplated wrong, evidence of the Defendants’ motive is relevant. The relevant section of the Virginia Code covering statutory conspiracy provides: A. Any two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever or (ii) willfully and maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act, shall be jointly and severally guilty of a Class 1 misdemeanor Va.Code Ann. § 18.2-499. With regard to statutory conspiracy, the plaintiff is not required to prove actual malice. Advanced Marine Enters., Inc. v. PRC Inc., 256 Va. 106, 501 S.E.2d 148, 154 (1998). Sections 18.2-499 and -500 do not require a plaintiff to prove that a conspirator’s primary and overriding purpose is to injure another in his trade or business. Id. (citing Commercial Bus. Sys., Inc. v. BellSouth Servs., Inc., 249 Va. 39, 453 S.E.2d 261, 267 (1995)); see also Va. Vermiculite, Ltd. v. W.R. Grace & Co.-Conn., 144 F.Supp.2d 558, 601-02 (W-D.Va.2001)(defendants’ purpose of injuring plaintiff in its business is sufficient to establish the requisite intent under the Virginia Conspiracy Act which does “not require a plaintiff to prove that a conspirator’s primary and overriding purpose is to injure another in his trade or business”) (citations omitted). Rather, these statutes merely require proof of legal malice, that is, proof that the defendant acted intentionally, purposefully, and without lawful justification. Advanced Marine, 501 S.E.2d at 154-55. Since statutory conspiracy requires that the defendant acted with the purpose of injuring the plaintiff in its business," }, { "docid": "13160602", "title": "", "text": "III. DISCUSSION Count I of Plaintiffs complaint alleges that Defendant has conspired to injure Plaintiff in his business, trade, or reputation and, therefore, that Defendant’ has violated Virginia Code § 18.2-499. Under Virginia Code § 18.2-500, “[a]ny person who [is] injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499” — Virginia’s conspiracy statute — may seek relief in a civil court. Va.Code Ann. § 18.2-500 (West 2007). In turn, the relevant portion of Virginia Code § 18.2-499 imposes liability on “[a]ny two or. more persons who combine, associate, agree, mutually undertake or concert together for the purpose of ... willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever.... ” Va.Code Ann. § 18.2-499 (West 2007). To ultimately prevail under the Virginia conspiracy statute, a plaintiff must prove by clear and convincing evidence the following elements: (1) concerted action; (2) legal malice; and (3) causally related injury. See Va. Vermiculite, Ltd. v. W.R. Grace & Co. — Conn., 144 F.Supp.2d 558, 601 (W.D.Va.2001), aff'd on other grounds sub nom., Va. Vermiculite, Ltd. v. Historic Green Springs, Inc., 307 F.3d 277 (4th Cir.2002); see also MultiChannel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 108 F.3d 522, 526 (4th Cir.1997). “Concerted action” reflects the statutory requirement that a plaintiff ultimately prove that someone “combined, associated, agreed, mutually undertook, or concerted together” with someone else in the injurious conduct. See Va.Code Ann. § 18.2-499 (West 2007); Simmons v. Mil- Ur, 261 Va. 561, 544 S.E.2d 666, 677 (2001). This means that a plaintiff must prove that the defendants “combined together to effect a preconceived plan and unity of design and purpose.” Bay Tobacco, LLC v. Bell Quality Tobacco Prods., LLC, 261 F.Supp.2d 483, 499 (E.D.Va.2003) (internal quotation marks omitted). After all, this “common design is the essence of the conspiracy.” Id. To survive a motion to dismiss, then, a plaintiff “must at least plead the requisite concert of action and unity of purpose,” id., and must do so “in more than mere conclusory language,” id. (internal quotation marks" }, { "docid": "13160601", "title": "", "text": "Bell Atl. Corp. v. Twombly, — U.S. -, 127 S.Ct. 1955, 1964-65, 167 L.Ed.2d 929 (2007) (alteration in original omitted) (citations omitted) (internal quotation marks omitted). Instead, “factual allegations must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. (citation omitted) (footnote call number omitted). Rule 12(b)(6) does “not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face”; plaintiffs must “nudge[ ] their claims across the line from conceivable to plausible” or “their complaint must be dismissed.” Id. at 1974. As the Fourth Circuit has held, a plaintiff “must sufficiently allege facts to allow the Court to infer that all elements of each of his causes of action exist,” see Jordan v. Alternative Res. Corp., 458 F.3d 332, 344-45 (4th Cir.2006), reh’g en banc denied, 467 F.3d 378 (4th Cir.2006),- cert. denied, — U.S.-, 127 S.Ct. 2036, 167 L.Ed.2d 804 (2007). III. DISCUSSION Count I of Plaintiffs complaint alleges that Defendant has conspired to injure Plaintiff in his business, trade, or reputation and, therefore, that Defendant’ has violated Virginia Code § 18.2-499. Under Virginia Code § 18.2-500, “[a]ny person who [is] injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499” — Virginia’s conspiracy statute — may seek relief in a civil court. Va.Code Ann. § 18.2-500 (West 2007). In turn, the relevant portion of Virginia Code § 18.2-499 imposes liability on “[a]ny two or. more persons who combine, associate, agree, mutually undertake or concert together for the purpose of ... willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever.... ” Va.Code Ann. § 18.2-499 (West 2007). To ultimately prevail under the Virginia conspiracy statute, a plaintiff must prove by clear and convincing evidence the following elements: (1) concerted action; (2) legal malice; and (3) causally related injury. See Va. Vermiculite, Ltd. v. W.R. Grace & Co. — Conn., 144 F.Supp.2d 558, 601" }, { "docid": "8603979", "title": "", "text": "the tortious interference claims, but not as to the common law and statutory conspiracy claims. While intent is an element of a tortious interference claim, all that is needed to prove intent is that a defendant “knows that the interference is certain or substantially certain to occur as a result of his [or her] actions.” Commerce Funding Corp. v. Worldwide Sec. Servs. Corp., 249 F.3d 204, 212-13 (4th Cir.2001). Thus, in establishing intent for purposes of the tor- tious interference claim, the Defendants’ motive is irrelevant. A common law civil conspiracy is a combination of two or more persons, by some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in itself criminal or unlawful, by criminal or unlawful means. Hechler Chevrolet, Inc. v. General Motors Corp., 280 Va. 396, 837 S.E.2d 744, 748 (1985)(citing Werth v. Fire Adjust. Bureau, 160 Va. 845, 171 S.E. 255, 259, cert. denied, 290 U.S. 659, 54 S.Ct. 74, 78 L.Ed. 570 (1933)). As set forth in American Jurisprudence: Since one cannot agree, expressly or tacitly, to commit a wrong about which he or she has no knowledge, in order for civil conspiracy to arise, the parties must be aware of harm or wrongful conduct at beginning of combination or agreement. Thus, civil conspiracy is an intentional tort requiring a specific intent to accomplish the contemplated wrong .... AMJUR CONSPIRACY § 51 (2d ed.2004). Since civil conspiracy requires a specific intent to accomplish the contemplated wrong, evidence of the Defendants’ motive is relevant. The relevant section of the Virginia Code covering statutory conspiracy provides: A. Any two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of (i) willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever or (ii) willfully and maliciously compelling another to do or perform any act against his will, or preventing or hindering another from doing or performing any lawful act, shall be jointly and severally guilty of a Class 1 misdemeanor Va.Code Ann. § 18.2-499. With regard to statutory conspiracy," } ]

[ { "docid": "22674447", "title": "", "text": "Terry v. Ohio, supra, at 19, n. 16. While applying such a test is relatively straightforward in a situation resembling a traditional arrest, see Dunaway v. New York, 442 U. S. 200, 212-216 (1979), the protection against unreasonable seizures also extends to ‘seizures that involve only a brief detention short of traditional arrest.’ United States v. Brignoni-Ponce, 422 U. S. 873, 878 (1975). What has evolved from our cases is a determination that an initially consensual encounter between a police officer and a citizen can be transformed into a seizure or detention within the meaning of the Fourth Amendment, ‘if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ Mendenhall, supra, at 554 (footnote omitted); see Florida v. Royer, 460 U. S. 491, 502 (1983) (plurality opinion).” Id., at 215. More importantly, in Florida v. Royer, 460 U. S. 491 (1983), a plurality of the Court adopted Justice Stewart’s formulation in Mendenhall as the appropriate standard for determining when police questioning crosses the threshold from a consensual encounter to a forcible stop. In Royer, the Court held that an illegal seizure had occurred. As a predicate for that holding, Justice White, in his opinion for the plurality, explained that the citizen “may not be detained even momentarily without reasonable, objective grounds for doing so; and his refusal to listen or answer does not, without more, furnish those grounds. United States v. Mendenhall, supra, at 556 (opinion of Stewart, J.).” 460 U. S., at 498 (emphasis added). The rule looks, not to the subjective perceptions of the person questioned, but rather, to the objective characteristics of the encounter that may suggest whether a reasonable person would have felt free to leave. Even though momentary, a seizure occurs whenever an objective evaluation of a police officer’s show of force conveys the message that the citizen is not entirely free to leave — in other words, that his or her liberty is being restrained in a significant way. That the Court understood the Mendenhall definition as both necessary and sufficient" } ]

[ { "docid": "9365684", "title": "", "text": "in six tubular packages concealed in a homemade “apron” Washington wore underneath his pants. In Florida v. Bostick, the Supreme Court reversed a Florida Supreme Court decision which adopted a per se rule prohibiting police from randomly boarding buses and questioning passengers as a means of drug interdiction. Florida v. Bostick, 501 U.S. 429, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991). The Supreme Court had previously held that the Fourth Amendment permits officers to approach individuals at random in airport lobbies and other public places to ask questions and to request consent to search their luggage, so long as a reasonable person would understand that he or she could refuse to cooperate. See Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983); United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In Bostick, the Court simply held that the rule applies equally to police encounters that take place on buses. It rejected the “free to leave” rubric that has been articulated for street encounters because a passenger may well hot want to leave the bus because he or she wants to go when the bus goes, so that factors other than the police encounter would dilute the application of the “free to leave” determination. It held that the appropriate inquiry is whether under “all the circumstances surrounding the encounter ... the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Id. at 439, 111 S.Ct. 2382 (1991). It held that the fact the encounter is in the cramped confines of a bus is but one factor to be taken into consideration, rather than the sole consideration given by the Florida court. In Bostick, the Supreme Court found two facts “particularly worth noting. First, the police specifically advised Bostick that he had the right to refuse consent.... Second, at no time did the -officers threaten Bostick with a gun.” Bostick, 501 U.S. at 432, 111 S.Ct. 2382. In this case, although Agent Perkins did" }, { "docid": "6454497", "title": "", "text": "involves ‘seizures’ of persons. [Wjhen the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen ... a ‘seizure’ has occurred.” Terry v. Ohio, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16; Michigan v. Chesternut, — U.S. -, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (unanimous Court); United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1979) (opinion of Stewart, J.). See generally 3 W. La-Fave, Search and Seizure § 9.2(h) (2d ed. 1987) (discussing police action not constituting a Terry stop). In United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), Justice Stewart, in an opinion joined in by then Associate Justice Rehnquist, formulated a test, inspired by the above-quoted language from Terry, to be used to determine when a person has been “seized” within the meaning of the fourth amendment: [A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. In the absence of some such evidence, otherwise inoffensive contact between a member of the public and the police cannot, as a matter of law, amount to a seizure of that person. Id. at 554-555, 100 S.Ct. at 1877 (opinion of Stewart, J.) (citations and footnote omitted). In Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983), a plurality of the Court used Justice Stewart’s “not free to leave” test in an airport drug courier case, and in Immigration and Naturalization Service v. Delgado, 466 U.S. 210, 104" }, { "docid": "23328006", "title": "", "text": "not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). The Court applied this test in Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983), finding that “when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment.” Under those circumstances, the Court found that the police activity “surely amount[ed] to a show of official authority such that ‘a reasonable person would have believed that he was not free to leave.'\" Royer, 460 U.S. at 502, 103 S.Ct. at 1326 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877). In reaching its decision, the Court did not rely upon a particular list of factors to determine whether or not a seizure occurred. Rather, they viewed all the circumstances surrounding the incident to determine whether or not a reasonable person would have felt compelled to comply with the police request. The Court subsequently reaffirmed this “contextual approach,” emphasizing that the test “is designed to assess the coercive effect of police conduct, taken as a whole, rather than to focus on particular details of that conduct in isolation ... what constitutes a restraint on liberty prompting a person to conclude that he is not free to ‘leave’ will vary, not only with the particular police conduct at issue, but also with the setting in which the conduct occurs.” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988). See also Bostick, 111 S.Ct. at 2389. Although in this case, as in Royer, the police identified themselves as narcotics agents, told Royer he was under suspicion, retained his identification and asked the suspect to accompany them to another room, these facts do not comprise the totality of the situation as they did in Royer. Throughout" }, { "docid": "15288421", "title": "", "text": "has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” Id. The mere fact that a law enforcement officer approaches an individual and so identifies himself, without more, does not result in a seizure. See Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983) (plurality opinion). The societal pressure to stop and speak with law enforcement is not a sufficient restraint of liberty to raise the interaction to a level that requires constitutional protection. In order for there to be a sufficient restraint on liberty to elevate an interaction between law enforcement and an individual to constitutional dimensions that trigger Fourth Amendment protection, the police must exert a show of authority that communicates to the individual that his liberty is restrained, meaning he is not free to leave. See Terry, 392 U.S. at 19 n. 16, 88 S.Ct. 1868. The show of authority can be in several forms, such as “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980). In sum, “the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his busi ness.’ ” Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988)). Here, the police officer did not make a sufficient show of authority to sufficiently convey to Baker that his liberty was restrained. Hoover, dressed in plain clothes, walked up to the car that was stopped because it was blocked by traffic. While Hoover displayed his badge he did so to identify himself as a police officer" }, { "docid": "23402659", "title": "", "text": "citizenry. are Fourth Amendment seizures. In Terry v. Ohio, the Supreme Court noted, “Obviously, not all personal intercourse between policemen and citizens involves ‘seizures’ of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a ‘seizure’ has occurred.” 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). The appellants claim that the officers’ knocking on their motel room’s door and window and shining a flashlight through the room’s window amounted to such a restraint on their liberty. The Supreme Court has formulated two approaches for determining whether a person has been “seized” within the meaning of the Fourth Amendment. The first of these approaches is employed when the police approach an individual in a place such as an airport, train terminal or on the street. As a general matter, law enforcement officers may approach a willing individual in a public place and ask that person questions without violating the Fourth Amendment. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984). In these situations, a “seizure” of the person occurs only if a reasonable person in similar circumstances would not have felt “free to leave.” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); United States v. Boden, 854 F.2d 983, 991 (7th Cir.1988). The second approach articulated by the Supreme Court applies when the police approach an individual in a confined space such as a bus. In such a situation, it no longer “makes sense to inquire whether a reasonable person would feel free to continue walking.” Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991). Because a person on a bus or in an otherwise confining space “has no desire to leave”" }, { "docid": "3384820", "title": "", "text": "of the Terry stop to detentions grounded on reasonable suspicion of other criminal activity, see, e.g., United States v. Brignoni-Ponce, 422 U.S. 873, 881, 95 S.Ct. 2574, 2580, 45 L.Ed.2d 607 (1975) (border patrol may detain automobiles briefly for questioning upon reasonable suspicion that passengers are illegal aliens), and provided an objective test for determining when a “seizure” has actually occurred. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (“a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave”); Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (explicitly adopting Mendenhall test). In Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 75 L.Ed.2d 229 (1983), a plurali ty of the Supreme Court sought to clarify the distinctions among the categories identified in Terry. With respect to the difference between an arrest and a Terry stop, the Court described Terry and its progeny as limited exceptions to the general rule requiring probable cause for seizures, and extended this reasonable suspicion exception to temporary detentions for questioning a suspect about illegal drug transactions. See 460 U.S. at 498-99, 103 S.Ct. at 1324-25. While the Royer plurality did not dispute the existence of reasonable suspicion on the facts of that case (where the suspect had purchased a one-way ticket from Miami to New York in cash under an assumed name), it concluded that the detention had escalated into a more serious seizure, requiring probable cause, when the police held onto the suspect’s ticket and identification and took him into a small room for questioning. See id. at 502-03, 103 S.Ct. at 1326-27. As to the propriety of police encounters with suspects absent reasonable suspicion (“non-seizures”), the plurality noted that “law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking him if he is" }, { "docid": "23303543", "title": "", "text": "constitutional violation because the encounter between Hicks and McKines did not implicate the fourth amendment. The magistrate also found that McKines voluntarily consented to the search. The district court adopted the magistrate’s report and recommendation and denied the motion to suppress. On appeal, McKines argues primarily that the encounter with Agent Hicks was not supported by reasonable suspicion. We must first consider, however, whether the encounter implicated the fourth amendment. II. DISCUSSION A. Fourth amendment seizure In Terry v. Ohio, 392 U.S. 1, 19 n. 16, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968), the Supreme Court noted that “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons.” As the Supreme Court readily admits, see INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984), and as its cases illustrate, defining this sort of fourth amendment seizure — an intrusion on personal liberty beyond that occurring during an entirely consensual encounter between citizens and police officers, but short of traditional, full-scale arrest requiring probable cause — is difficult. Nevertheless, it is at least clear that such a seizure occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16). Justice Stewart’s opinion has since been cited and relied on for establishing the test for a fourth amendment seizure: “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. 446 U.S. at 554, 100 S.Ct. at 1877. Accord Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988); Delgado, 466 U.S. at 215, 104 S.Ct. at 1762; Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983)." }, { "docid": "18652672", "title": "", "text": "reasonable person would feel free to decline the officer’s request or otherwise terminate the encounter.” Id. This test calls for a “contextual approach,” that takes into account all of the circumstances surrounding the incident. See Michigan v. Chesternut, 486 U.S. 567, 572-573, 108 S.Ct. 1975, 1978-79, 100 L.Ed.2d 565 (1988); I.N.S. v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); United States v. Springer, 946 F.2d 1012, 1016 (2d Cir.1991); United States v. Rose, 889 F.2d 1490, 1493 (6th Cir.1989) (“What constitutes a restraint on liberty prompting a person to conclude that he is not free to leave will vary with the police conduct at issue and the setting in which the conduct occurred.”). The Supreme Court has identified a number of factors that might suggest that a seizure has occurred, even where the person who may have been seized did not attempt to leave, including: the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (citations omitted). Lower courts have added to this list, for example deeming the prolonged retention of a person’s personal effects or a request by an officer to accompany him to the police station or a police room to be relevant considerations. See, e.g., Springer, 946 F.2d at 1016; United States v. Battista, 876 F.2d 201, 205 (D.C.Cir.1989). While these factors are not exclusive, they form an appropriate starting point for our inquiry. Second, the Bostick Court emphasized that only restraints on personal liberty caused by police conduct are relevant to the Fourth Amendment seizure analysis; independent factors (such as the cramped confines of a crowded bus) should not weigh in our calculus. 501 U.S. at 435-37, 111 S.Ct. at 2387; United States v. Jordan, 951 F.2d 1278, 1281 (D.C.Cir.1991). And, finally, in California v. Hodari D., 499 U.S. 621, 111 S.Ct. 1547, 113 L.Ed.2d 690 (1991), the Court" }, { "docid": "23328005", "title": "", "text": "an officer “ ‘by means of physical force or show of authority, has in some way restrained the liberty of a citizen’ ... an encounter between a police officer and a citizen is consensual, and implicates no Fourth Amendment interest.” Springer, 946 F.2d at 1016 (quoting Florida v. Bostick, — U.S. -, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991)). See also United States v. Lee, 916 F.2d 814, 819 (2d Cir.1990) (“a police officer is free to approach a person in public and ask a few questions”). Upon request, Glover then accompanied Terranova to the NFTA Office for a computer check of his identification, and agreed to further questioning. There is no reason to believe that a person in Glover’s position would have felt compelled to accompany Terranova into the Office or submit to further questioning. Consequently, Glover was not seized at this time. The Supreme Court has found that a seizure occurs “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). The Court applied this test in Florida v. Royer, 460 U.S. 491, 501, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983), finding that “when the officers identified themselves as narcotics agents, told Royer that he was suspected of transporting narcotics, and asked him to accompany them to the police room, while retaining his ticket and driver’s license and without indicating in any way that he was free to depart, Royer was effectively seized for the purposes of the Fourth Amendment.” Under those circumstances, the Court found that the police activity “surely amount[ed] to a show of official authority such that ‘a reasonable person would have believed that he was not free to leave.'\" Royer, 460 U.S. at 502, 103 S.Ct. at 1326 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877). In reaching its decision, the Court did not rely upon a particular list of factors to determine whether or not a seizure occurred." }, { "docid": "415158", "title": "", "text": "follow Tom were unjustified, they did not constitute a “seizure” and, as a result, are not subject to any Fourth Amendment scrutiny. Voida’s initial questioning of Tom was “a voluntary encounter initiated by non-coercive police questioning, requiring no suspicion at all.” United States v. High, 921 F.2d 112, 115 (7th Cir.1990); see also Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 1879 n. 16, 20 L.Ed.2d 889 (1968). Because Tom was completely free to leave this encounter, High, 921 F.2d at 115, Florida v. Bostick, — U.S. —, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991), the Fourth Amendment was not implicated. But, the plaintiff argues, if Tom was free to leave this voluntary non-coercive encounter, then how could Voida have been justified in following Tom and telling him to “wait a second”? Appellant’s Br. at 19. Likewise when Tom threw down his bicycle and ran away, how could Voida have been justified in ordering Tom to stop and in pursuing him? The answer is that Voida did not need any justification for following Tom and ordering him to stop; those actions do not constitute a “seizure” under the Fourth Amendment. “Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of the citizen may we conclude that a ‘seizure’ has occurred.” Terry, 88 S.Ct. at 1879 n. 16. This test is objective; “a person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (footnote omitted); see also Florida v. Royer, 460 U.S. 491, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). In California v. Hodari D., — U.S. —, 111 S.Ct. 1547, 1551, 113 L.Ed.2d 690 (1991), the Court held that the objective test of Mendenhall states a necessary, but not a sufficient, condition for seizure. A seizure requires not only that the" }, { "docid": "14288685", "title": "", "text": "at any time during the events in question. The Initial Encounter I find that the initial encounter between defendant and Barbagallo was consensual. Not every encounter between a police officer and a citizen is a seizure implicating the Fourth Amendment. Terry v. Ohio, supra, 392 U.S. at 19, n. 16, 88 S.Ct. at 1879, n. 16. “Certainly, a police officer is free to approach a person in public and ask a few questions; such conduct, without more, does not constitute a seizure.” United States v. Lee, 916 F.2d 814, 819 (2d Cir.1990), citing Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1323, 75 L.Ed.2d 229 (1983). The Supreme Court recently stated: We adhere to the rule that, in order to determine whether a particular encounter constitutes a seizure, a court must consider all the circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. Florida v. Bostick, — U.S. —, 111 S.Ct. 2382, 2389, 115 L.Ed.2d 389 (1991). Thus, the inquiry in determining whether a seizure has occurred must focus on whether the police conduct was impermissibly coercive. United States v. Thompson, 941 F.2d 66 (2d Cir.1991), citing Florida v. Bostick, supra. To constitute a seizure, the restraint of an individual “... must result in a restriction of the individual’s autonomy; in general, the cases turn on the degree of voluntariness that an individual maintains in an encounter with police.” United States v. Madison, 936 F.2d 90, 93 (2d Cir.1991). Examples of circumstances which indicate that a seizure has occurred include “the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s requests might be compelled.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). See also United States v. Madison, supra, 936 F.2d at 93. In this case, the circumstances" }, { "docid": "8049320", "title": "", "text": "now turn to the gravamen of Cardoza’s Fourth Amendment argument, namely, whether the district court’s determination that there was no seizure was correct. To be sure, “not all personal intercourse between policemen and citizens involves ‘seizures’ of persons.” Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16. Instead, “[i]nteraction between law enforcement officials and citizens generally falls within three tiers of Fourth Amendment analysis, depending on the level of police intrusion into a person’s privacy.” Young, 105 F.3d at 5. The first tier “encompasses interaction of such minimally intrusive nature that it does not trigger the protections of the Fourth Amendment.” Id. It has therefore been recognized that police officers may approach citizens in public and ask questions without the need for articulable suspicion of criminal activity. Florida v. Bostick, 501 U.S. 429, 434-35, 111 S.Ct. 2382, 2386-87, 115 L.Ed.2d 389 (1991); Young, 105 F.3d at 6. Undoubtedly, Fourth Amendment analysis does not easily lend itself to bright line distinctions. See Zapata, 18 F.3d at 975. It is therefore the case that, in order to determine whether a particular encounter constitutes a seizure, a court must .consider all the. circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. Bostick, 501 U.S. at 439, 111 S.Ct. at 2389. The test employed in this area is highly fact specific. As a result, the Court in Bostick rejected a per se rule that police drug interdiction efforts on bus lines were always unconstitutional because it determined that any analysis that hinged on a single dispositive factor foreclosed consideration of “all the circumstances. ...” Id. See also Michigan v. Chesternut, 486 U.S. 567, 572, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (“[A]ny assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account all of the circumstances surrounding the incident in each individual case.”)(internal quotation omitted). Our decisions have adhered to an analysis that considers the totality of" }, { "docid": "23306812", "title": "", "text": "497 (1980) (opinion of Stewart, J.). This “free to leave” test is now used by the courts in determining whether particular police-citizen encounters should be placed in the realm of Fourth Amendment “seizures.” Over the years, the courts have been confronted with a variegated array of “encounters.” In I.N.S. v. Delgado, 466 U.S. 210, 104 S.Ct. 1758, 80 L.Ed.2d 247 (1984), and most recently in Florida v. Bostick, — U.S. -, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991), the Court addressed the issue in the context of encounters in which the citizen was more or less constrained from walking away by a factor other than the actions of the police. In Delgado, the workers being questioned in their work place were restricted from leaving by their “voluntary obligations to their employer” to remain on the job. 466 U.S. at 218, 104 S.Ct. at 1763. Similarly, the movement of the bus passenger in Bostick was restricted not by the police but, rather, “as the natural result of his decision to take the bus.” 111 S.Ct. at 2387. The Court in Bostick stated that the words “free to leave” embodied a principle and that “the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Id. Explaining how this inquiry should proceed, the Court stated that “the crucial test is whether, taking into account all of the circumstances surrounding the encounter, the police conduct would ‘have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.’ ” Id. (quoting Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988)). This “free to leave” principle has also been described as “no reason to believe that they would be detained if they gave truthful answers to the questions put to them or if they simply refused to answer,” Delgado, 466 U.S. at 218, 104 S.Ct. at 1763, or “decline to listen to the questions at all and ... go on his way.” Florida v. Royer, 460 U.S. 491," }, { "docid": "23327982", "title": "", "text": "“a reasonable suspicion supported by articulable facts that criminal activity ‘may be afoot.’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 1585, 104 L.Ed.2d 1 (1989) (quoting Terry, 392 U.S. at 30, 88 S.Ct. at 1884). The third and final type of encounter is an arrest— plainly a Fourth Amendment “seizure”— that must be based on probable cause. See, e.g., Hooper, 935 F.2d at 490; United States v. Bradley, 923 F.2d 362, 364 (5th Cir.1991). To determine whether a “seizure” has occurred triggering the Fourth Amendment’s protections, a court must consider “ 'if, in view of all of the circumstances surrounding the [encounter], a reasonable person would have believed that he [or she] was not free to leave.’ ” Lee, 916 F.2d at 819 (quoting Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, /.))); see also Bostick, 111 S.Ct. at 2389. The test is an objective one, see, e.g., Springer, 946 F.2d at 1016; Lee, 916 F.2d at 819, based on how a reasonable innocent person would view the encounter. Bostick, 111 S.Ct. at 2388. As a guide to applying this test, we have enumerated certain factors that might suggest that a seizure occurred, namely: the threatening presence of several officers; the display of a weapon; the physical touching of the person by the officer; language or tone indicating that compliance with the officer was compulsory; prolonged retention of a person’s personal effects, such as airplane tickets or identification; and a request by the officer to accompany him to the police station or a police room. Lee, 916 F.2d at 819; see also Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877 (opinion of Stewart, J.); Springer, 946 F.2d at 1016. In the present case, applying the applicable legal standard, the district court found that Glover’s bags were seized when, once in the NFTA office, Terranova told Glover that his bags would be detained pending the arrival of a" }, { "docid": "8049321", "title": "", "text": "that, in order to determine whether a particular encounter constitutes a seizure, a court must .consider all the. circumstances surrounding the encounter to determine whether the police conduct would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter. Bostick, 501 U.S. at 439, 111 S.Ct. at 2389. The test employed in this area is highly fact specific. As a result, the Court in Bostick rejected a per se rule that police drug interdiction efforts on bus lines were always unconstitutional because it determined that any analysis that hinged on a single dispositive factor foreclosed consideration of “all the circumstances. ...” Id. See also Michigan v. Chesternut, 486 U.S. 567, 572, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (“[A]ny assessment as to whether police conduct amounts to a seizure implicating the Fourth Amendment must take into account all of the circumstances surrounding the incident in each individual case.”)(internal quotation omitted). Our decisions have adhered to an analysis that considers the totality of the circumstances particular to each encounter. Young, 105 F.3d at 6. In doing so we have had the recent opportunity to examine the existence of Fourth Amendment seizures under facts remarkably similar to the case at hand. Thus, in Young we found no seizure where a police cruiser “pulled alongside [defendant], the officers identified themselves as Boston Police officers, and asked ‘got a minute’ to which [defendant] replied ‘sure.’ ” Id. Similarly, in Sealey, there was no Fourth Amendment violation where police officers in a cruiser approached the defendant and yelled “Hey Stephen, what’s up?” before the defendant took flight. 30 F.3d at 8, 10. In each instance, our determination was informed by the observation that “in the absence of an officer’s exertion of physical force or an individual’s submission to a show of authority, no seizure occurs.” Young, 105 F.3d at 6; Sealey, 30 F.3d at 10. Cardoza focuses our attention on several facts particular to his situation that ostensibly compel a holding contrary to Young and Sealey. First, the question posed to him," }, { "docid": "7896995", "title": "", "text": "Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980). “[T]he appropriate inquiry is whether a reasonable person would feel free to decline the officers’ requests or otherwise terminate the encounter.” Florida v. Bostick, 501 U.S. 429, 436, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991). In this inquiry, the detainee’s age, education, and intelligence are factors to be taken into account when determining the voluntariness of submission to a police request, although they are not decisive. Mendenhall, 446 U.S. at 558, 100 S.Ct. at 1879 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 2047, 36 L.Ed.2d 854 (1973)). The issue is whether a reasonable person would have felt free to disregard Murphy and walk away. Geoffrey Mitchell stated in his affidavit that he did not feel free to decline Murphy’s request to accompany him, which he interpreted as an order. Geoffrey Mitchell Aff. ¶ 12. The defendants have presented no evidence that the plaintiffs were in fact free to ignore Murphy and go about their business, or that a reasonable person would have believed so. See Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 1977, 100 L.Ed.2d 565 (1988). It is a reasonable inference that the plaintiffs would have been prevented from leaving if they had sought to do so. Nor have defendants cited any case law to support their argument that the proximity of the police station (50 feet away) meant that there was no seizure when the plaintiffs were asked to accompany Murphy inside. In these circumstances, we have no difficulty in finding that the plaintiffs were seized within the meaning of the Fourth Amendment. See Florida v. Boyer, 460 U.S. 491, 502-03, 103 S.Ct. 1319, 1326-27, 75 L.Ed.2d 229 (1983). The next question is the type of seizure that occurred. The facts here demonstrate more than a simple Terry stop, in which police may momentarily detain someone on the street for brief questioning and may conduct a brief frisk for weapons. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). Murphy did not" }, { "docid": "23303544", "title": "", "text": "— is difficult. Nevertheless, it is at least clear that such a seizure occurs “[o]nly when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” United States v. Mendenhall, 446 U.S. 544, 552, 100 S.Ct. 1870, 1876, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.) (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1879 n. 16). Justice Stewart’s opinion has since been cited and relied on for establishing the test for a fourth amendment seizure: “[A] person has been ‘seized’ within the meaning of the Fourth Amendment only if, in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” Id. 446 U.S. at 554, 100 S.Ct. at 1877. Accord Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988); Delgado, 466 U.S. at 215, 104 S.Ct. at 1762; Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983). As the Supreme Court’s cases make clear, this test requires, generally, that we “take into account ‘all of the circumstances surrounding the incident’ in each individual case.” Chesternut, 486 U.S. at 572, 108 S.Ct. at 1978 (quoting Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877). The Supreme Court has explicitly set forth several factors which might aid in applying the Mendenhall test. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled. Mendenhall, 446 U.S. at 554, 100 S.Ct. at 1877. Applying the test in Mendenhall, Justice Stewart found no fourth amendment seizure. Agents of the DEA stopped Mendenhall in the airport concourse, identified themselves as federal agents, asked to see her identification and her airline ticket, noted discrepancies between the two, and" }, { "docid": "23090906", "title": "", "text": "Supp. 1992), is not dispositive on the issue. See Reid v. Georgia, 448 U.S. 438, 442, 100 S.Ct. 2752, 2754-55, 65 L.Ed.2d 890 (1980) (per curiam) (“[W]holly lawful conduct might justify the suspicion that criminal activity was afoot.”). Rather, the government argues that Officer LeMasters’ conduct must be judged under a reasonableness standard, and her conduct was reasonable in light of the circumstances. Because the government’s challenge is limited to the proper legal standard and the reasonableness of the officer’s conduct, our review is de novo. See United States v. Evans, 937 F.2d 1534, 1536-37 (10th Cir.1991) (“[UJltimate determinations of reasonableness under the Fourth Amendment, and other questions of law, are reviewed de novo.”). A. “[T]he Fourth Amendment’s protection against ‘unreasonable ... seizures’ includes seizure of the person.” California v. Hodari D., — U.S. -,-, 111 S.Ct. 1547, 1549, 113 L.Ed.2d 690 (1991) (citation omitted). Of course, not all police-citizen encounters implicate the Fourth Amendment. See, e.g., Michigan v. Chesternut, 486 U.S. 567, 574-76, 108 S.Ct. 1975, 1980-81, 100 L.Ed.2d 565 (1988); INS v. Delgado, 466 U.S. 210, 218-21, 104 S.Ct. 1758, 1763-65, 80 L.Ed.2d 247 (1984). See generally United States v. Bloom, 975 F.2d 1447, 1450-56 (10th Cir.1992). “[MJere police questioning does not constitute a seizure.” Florida v. Bostick, — U.S. -, -, 111 S.Ct. 2382, 2386, 115 L.Ed.2d 389 (1991). Moreover, “ ‘law enforcement officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place_’” Id. (quoting Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion)). Rather, a person is seized for Fourth Amendment purposes when, considering all the surrounding circumstances, the police conduct “would have communicated to a reasonable person that the person was not free to decline the officers’ requests or otherwise terminate the encounter.” Id. at -, 111 S.Ct. at 2389. Applying this standard to the case before us, we have little doubt that both King and Burdex were seized when Officer LeMasters ordered King at gunpoint to place his hands on the steering wheel or else be" }, { "docid": "23402660", "title": "", "text": "Fourth Amendment. Florida v. Royer, 460 U.S. 491, 497, 103 S.Ct. 1319, 1324, 75 L.Ed.2d 229 (1983) (plurality opinion); United States v. Notorianni, 729 F.2d 520, 522 (7th Cir.1984). In these situations, a “seizure” of the person occurs only if a reasonable person in similar circumstances would not have felt “free to leave.” Michigan v. Chesternut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (opinion of Stewart, J.)); United States v. Boden, 854 F.2d 983, 991 (7th Cir.1988). The second approach articulated by the Supreme Court applies when the police approach an individual in a confined space such as a bus. In such a situation, it no longer “makes sense to inquire whether a reasonable person would feel free to continue walking.” Florida v. Bostick, 501 U.S. 429, 435, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389 (1991). Because a person on a bus or in an otherwise confining space “has no desire to leave” and would wish to remain even if police were not present, “the degree to which a reasonable person would feel that he or she could leave is not an accurate measure of the coercive effect of the encounter.” Id. at 435-36, 111 S.Ct. at 2387. When a person’s “freedom of movement [is] restricted by a factor independent of police conduct — i.e., by his being a passenger on a bus ..., the appropriate inquiry is whether a reasonable person would feel free to decline the officers’ request or otherwise terminate the encounter.” Id. at 436, 111 S.Ct. at 2387; Chesternut, 486 U.S. at 576, 108 S.Ct. at 1981 (seizure occurred if “respondent could reasonably have believed that he was not free to disregard the police presence and go about his business”). This second formulation is the appropriate analytical approach in this case. Mr. Jerez’ and Mr. Solis’ movements were confined as a natural result of their voluntary decision to stay in the motel. It was the middle of the night and at least one of" }, { "docid": "6715697", "title": "", "text": "F.Supp. at 144. Finally, Colon’s words and actions indicated that she consented to the search. There is no evidence that Colon had any trouble understanding the agents’ request to look in her bag. She spoke primarily in English at all relevant times, and no one testified that she had any difficulty understanding questions or framing answers. There is, therefore, no reason to discount Colon’s direct and unambiguous answer to the request to search her bag. B. The Initial Encounter and Questioning We now consider whether Colon’s consent was vitiated because she and Montilla were illegally seized when the agents initially approached and questioned them. We reiterate that if a seizure occurred, it was illegal, because the government makes no claim that the agents had probable cause for an arrest or that the encounter was a stop valid under Terry v. Ohio. As the Supreme Court has repeatedly observed: Obviously, not all personal intercourse between policemen and citizens involves “seizures” of persons. Only when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen may we conclude that a “seizure” has occurred. Michigan v. Chestemut, 486 U.S. 567, 573, 108 S.Ct. 1975, 1979, 100 L.Ed.2d 565 (1988) (quoting Terry, 392 U.S. at 19 n. 16, 88 S.Ct. at 1878 n. 16). A person has been seized for purposes of the Fourth Amendment “only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.” United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 1877, 64 L.Ed.2d 497 (1980) (plurality opinion of Stewart, J.); see also Chesternut, 486 U.S. at 573, 108 S.Ct. at 1979 (unanimous Court applying Mendenhall standard); INS v. Delgado, 466 U.S. 210, 215, 104 S.Ct. 1758, 1762, 80 L.Ed.2d 247 (1984); Florida v. Royer, 460 U.S. 491, 502, 103 S.Ct. 1319, 1326, 75 L.Ed.2d 229 (1983) (plurality opinion of White, J.); United States v. Moreno, 897 F.2d 26, 30 (2d Cir.), cert. denied, — U.S. —, 110 S.Ct. 3250, 111 L.Ed.2d 760" } ]

[ { "docid": "22781710", "title": "", "text": "applicable to petitions for habeas corpus in federal court. The new limitations period created by AEDPA is as follows: (1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (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; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. 28 U.S.C. § 2244(d)(1). There was nothing on the habeas corpus form supplied to petitioner that mentioned AEDPA or any limitations period. Respondent moved in the district court to dismiss the petition on the ground that petitioner failed to comply with the one-year limitations period of AEDPA. Unless there was an “impediment to filing an application” or unless the limitation period was tolled, the time dhring which petitioner could file his federal petition expired one year after petitioner’s judgment of conviction became final. The judgment became final on July 23, 1996, when the time to seek certiorari from the Supreme Court on direct review expired. In a declaration appended to petitioner’s opposition to the motion to dismiss, petitioner stated that the law library of the prison in which, he" } ]

[ { "docid": "22082866", "title": "", "text": "direct appeal, the one-year limitation period begins to run when the time for filing a certiorari petition expires.” Id. at 1279. Since the ninety-day period is included with respect to federal prisoners, we see no reason not to do the same with respect to state prisoners, see id. at 1278 (“We agree that there is simply no indication that Congress intended to treat state and federal habeas petitioners differently.”) — especially since § 2244 contains language that suggests the period should be counted and § 2255 does not. Compare 28 U.S.C. § 2244(d)(1)(A) (“The limitation period shall run from the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.”) (emphasis added), with 28 U.S.C. § 2255(1) (“The limitation period shall run from ... the date on which the judgment of conviction becomes final.”). Finally, we note that the circuit courts that have explicitly ruled on the issue of timeliness under § 2244(d)(1)(A) are in accord with Rhine; that is, all have held that “the period of ‘direct review’ in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner' actually files such a petition.” Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.1999); see also Bronaugh v. Ohio, 235 F.3d 280, 281 (6th Cir.2000) (“This circuit ... recently decided ... that, under § 2244(d)(1)(A), the one-year statute of limitations does not begin to run until the time for filing a petition for a writ of certiorari for direct review in the United States Supreme Court has expired.”); Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir.1998) (“We conclude that the running of the statute of limitations imposed by § 2244(d)(1)(A) is triggered by either (I) the conclusion of all direct criminal appeals in the state system, followed by either the completion or denial of certiorari proceedings before the United States Supreme Court; or (ii) if certiorari was not sought, then by the conclusion of all" }, { "docid": "83842", "title": "", "text": "refused his petition for discretionary review where the prisoner failed to file a timely petition for writ of certiorari); Roberts v. Cockrell, 319 F.3d 690, 694 (5th Cir.2003) (holding direct appeal terminates with the disposition of a petition for writ of certio-rari to the United States Supreme Court or with the expiration of the deadline for filing such a petition). Petitioner did not file a petition for certiorari. Thus, his state criminal conviction became final for purposes of the AEDPA’s one-year statute of limitations when the time for filing a petition for writ of certiorari elapsed. Roberts v. Cockrell, 319 F.3d at 693-94; Flanagan v. Johnson, 154 F.3d 196, 197 (5th Cir.1998). However, petitioner filed his second state habeas corpus application on February 28, 2001. Petitioner’s second state habeas corpus application remained pending before the state courts until May 14, 2003. The AEDPA’s one-year statute of limitations is statutorily tolled during the time an application for state habeas corpus relief is pending. In re Wilson, 442 F.3d 872, 874 (5th Cir.2006). More specifically, Title 28 U.S.C. Section 2244(d)(2) provides that the “time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation.... ” Ott v. Johnson, 192 F.3d 510, 512 (5th Cir.1999), cert. denied, 529 U.S. 1099, 120 S.Ct. 1834, 146 L.Ed.2d 777 (2000). Thus, the AED-PA’s one-year statute of limitations on petitioner’s claims herein was statutorily tolled until May 14, 2003. The AEDPA’s limitations period applicable to petitioner’s claims herein generally commenced to run the following date, i.e., on May 15, 2003. Petitioner is entitled to the benefit of no statutory tolling after that date. The filing of petitioner’s initial federal habeas corpus petition in this Court on March 31, 2004 did not result in any additional tolling of the AEDPA’s applicable one-year statute of limitations on petitioner’s then-unexhausted Brady claim. See Duncan v. Walker, 533 U.S. 167, 172-77, 121 S.Ct. 2120, 2124-27, 150 L.Ed.2d 251 (2001)(holding the pendency of a federal habeas corpus petition does not" }, { "docid": "22107163", "title": "", "text": "in which “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending-” 28 U.S.C. § 2244(d)(2). The parties agree that Tillema’s conviction became final on July 2,1996, when his time expired to seek certiorari in the United States Supreme Court. See Bowen v. Roe, 188 F.3d 1157, 1159 (9th Cir.1999). Absent any tolling of AEDPA’s limitation period, then, Tillema’s federal petition would have been due on July 2, 1997. Because Tillema did hot file the instant petition until September 22, 1998, the petition was untimely unless statutory or equitable tolling excused the delay. Tillema contends that he was entitled to tolling of AEDPA’s limitations period for three reasons. First, he argues that his “Motion to Vacate Illegal Sentence,” filed on October 30, 1995 and denied on September 15, 1998, was a “properly filed application for State post-conviction or other collateral review” within the meaning of 28 U.S.C. § 2244(d)(2). Second, he urges that any time in excess of AEDPA’s limitation period should be equitably tolled, because the district court erred by dismissing his original section 2254 petition without providing him with the option of proceeding on his exhausted claims only. We agree ’ with both of, Tillema’s contentions. A. Statutory Tolling Under 28 U.S.C. § 2244(d)(2), “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” It is undisputed that if Tillema’s second “Motion to Vacate” tolled AEDPA’s statute of limitations, the instant petition was timely filed: the motion was filed on October 30, 1995, before the limitations period began to run, and it was denied on September 15, 1998, only seven days before Tillema filed the petition. The state successfully argued below that Tillema’s motion to vacate was not “properly filed” within the meaning of section 2244(d)(2), because the Nevada Supreme Court denied the motion under the doctrine of “law of the case.” However, after the district court dismissed Tillema’s petition," }, { "docid": "18524492", "title": "", "text": "filing § 2254 petitions, which begins to run following the latest of several possible dates, including the date on which the petitioner’s judgment becomes final. See 28 U.S.C. § 2244(d)(1); Alexander v. Sec’y for the Dep’t of Corr., 523 F.3d 1291, 1294 (11th Cir.2008). To decide whether a petition for writ of habeas corpus was filed within one-year of the conviction becoming final, we must determine “(1) when the [collateral] motion was filed and (2) when [the] ‘judgment of conviction’ became final.” Adams v. United States, 173 F.3d 1339, 1340-41 (11th Cir.1999). A pro se petitioner’s collateral action is deemed filed in federal court on the date it is delivered to prison authorities for mailing, and absent state-presented evidence to the contrary, we will presume that the petition was delivered on the date the petition was signed. Washington v. United States, 243 F.3d 1299, 1301 (11th Cir.2001). A conviction is final at “the conclusion of direct review or the expiration of the time for seeking such review.” Pugh v. Smith, 465 F.3d 1295, 1298 (11th Cir.2006) (quoting 28 U.S.C. § 2244(d)(1)(A)). , A state prisoner’s conviction becomes final when the United States Supreme Court denies certiorari, issues a decision on the merits, or when the ninety day period in which to file for certiorari expires, regardless of whether the defendant raised any federal issues on direct appeal. Nix v. Sec’y for the Dep’t of Corr., 393 F.3d 1235, 1236-37 (11th Cir.2004). “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation ....” 28 U.S.C. § 2244(d)(2); Cramer v. Sec’y for the Dep’t of Corr., 461 F.3d 1380, 1383 (11th Cir.2006). While a Rule 32 petition is a tolling motion under § 2244(d)(2), it cannot toll the one-year limitations period if that period has expired prior to filing the Rule 32 petition. Webster v. Moore, 199 F.3d 1256, 1259 (11th Cir.2000); see Guenther v. Holt 173 F.3d 1328, 1331 (11th Cir.1999) (relief sought under Ala. R.Crim. P." }, { "docid": "16211545", "title": "", "text": "the AEDPA’s limitations period, on the date that the 90 day time period for seeking certiorari with the U.S. Supreme Court expired. See Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000). Petitioner’s judgment therefore became final on September 27, 1989, when he failed to file a petition for writ of certiorari with the U.S. Supreme Court. Thomas v. Straub, 10 F.Supp.2d at 835. Because petitioner’s conviction became final prior to the April 24, 1996 enactment date of the AEDPA, petitioner had one year from April 24,1996 to timely file a petition for habeas relief with the federal court. Porter v. Smith, 126 F.Supp.2d 1073, 1074-1075 (E.D.Mich.2001). Absent state collateral review, petitioner would have been required to file his petition for writ of habeas corpus with this Court no later than April 24, 1997 in order for the petition to be timely filed. Id. at 1075. Petitioner filed a state post-conviction motion for relief from judgment on February 24, 1997, after three hundred and six (306) days had elapsed. 28 U.S.C. § 2244(d)(2) expressly provides that the time during which a properly filed application for state post-conviction relief or other collateral review is pending shall not be counted towards the period of limitations contained in the statute. Matthews v. Abramajtys, 39 F.Supp.2d 871, 874 (E.D.Mich.1999). This tolling provision is applicable to state prisoners, whose one year limitations period for seeking federal habeas relief began to run on the AED-PA’s enactment date. Lucas v. Carter, 46 F.Supp.2d 709, 711 (N.D.Ohio 1999). The tolling of the one year statute of limitations did not end until at the latest ninety days after the Michigan Supreme Court completed collateral review by denying the petitioner’s application for leave to appeal on August 31, 1999. Cf., Hudson v. Jones, 35 F.Supp.2d 986, 988-989 (E.D.Mich.1999) that would be November 29, 1999. However, petitioner’s motion for relief from judgment did not cause the one year limitations period to begin to run anew after the post-conviction motion was denied. See Searcy v. Carter, 246 F.3d 515, 519 (6th Cir.2001). Thus, petitioner had, at most, fifty nine days remaining to" }, { "docid": "23522838", "title": "", "text": "U.S.C. § 2253(c)(1) to determine if Habteselassie is entitled to the benefit of the tolling provision contained in 28 U.S.C. § 2244(d)(2) and if his habeas petition is thereby rendered timely. For the following reasons, we reverse and remand. As relevant here, a one-year period of limitation applies to an application for a federal writ of habeas corpus and begins to run from the latest of “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). [T]he judgment is not final and the one-year limitation period for filing for federal post-conviction relief does not begin to run until after the United States Supreme Court has denied review, or, if no petition for certiorari is filed, after the time for filing a petition for certiorari with the Supreme Court has passed. Rhine v. Boone, 182 F.3d 1153, 1155 (10th Cir.1999). Because Habteselassie did not file a petition for certiorari to the United States Supreme Court, the one-year period of limitation started to run ninety days after October 15, 1996, the date the Colorado Supreme Court denied his petition for certiorari and his state court review was thus completed. See Sup.Ct. R. 13 (indicating that a petition for a writ of certiora-ri is timely when it is filed within ninety days following the entry of judgment). Accordingly, absent any tolling of the limitations period, Habteselassie would only have had until January 13, 1998, to file a habeas corpus petition in federal court, and his petition of November 30, 1998, would have been untimely. Section 2244(d)(2) allows a federal habe-as petitioner to toll this period of limitations while he seeks state post-conviction relief, however. Section 2244(d)(2) provides: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” The district court held that the time during which Habteselassie’s motion for state post-conviction relief was pending could not be tolled" }, { "docid": "23238938", "title": "", "text": "of appealability. Abela appealed his denial of the motion to this court. We granted his certificate of appealability on the issues before us on April 20, 2001. Between August 20, 1996, and May 28, 1998, Abela sought state collateral relief in the Michigan trial, appellate, and high courts. The limitations period was clearly tolled during this period because Abela’s state collateral relief motions were pending in the various state courts. See Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). In Carey, the Court held that “until the application has achieved final resolution through the State’s post-conviction procedures, by definition it remains ‘pending.’ ” Id. Thus, the key issue before us today is whether the one-year statute of limitations applicable to federal habeas corpus petitions is also tolled during the period in which a petitioner may seek, and the Supreme Court considers whether to grant, certiorari review of the denial of the petitioner’s state collateral relief motion. Title 28 U.S.C. § 2244(d)(1) provides a one-year period of limitations for people “in custody pursuant to the judgment of a State court” to file an application for a writ of habeas corpus. Title 28 U.S.C. § 2244(d)(2) provides for tolling of this one-year period as follows: “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” For prisoners whose convictions became final prior to April 24, 1996, the effective date of the Anti Terrorism and Effective Death Penalty Act, the one-year limitations period runs against them as of that date. Austin v. Mitchell, 200 F.3d 391, 393 (6th Cir.1999). Abela’s judgment of conviction became final prior to April 24, 1996, so his one-year limitations period began running on that date. The Supreme Court recently concluded that a federal habeas corpus petition does not constitute “State post-conviction or other collateral review” in order to toll the one-year limitations period pursuant to section 2244(d)(2). Duncan v. Walker, 533 U.S. 167, 182, 121" }, { "docid": "12007479", "title": "", "text": "in the district court, Butler argues here that the approximately five-month period during which his direct review application was before the Louisiana Supreme Court on direct appeal of his conviction (August 5, 1998 to January 8, 1999) should not count against his federal statute of limitations period. Butler argues that the limitations period did not start until after the Louisiana Supreme Court’s January 1999 ruling, or alternatively, that he is entitled to equitable tolling for the five-month time period his application was pending. Whether this time period counts against Butler’s one year is the essential question on appeal. If it does not count, Butler’s Section 2254 petition was timely, and the district court’s dismissal was improper. If the time period counts against Butler, his federal statute of limitations expired well before he even filed his state habeas petition. We now turn to that question. A. When Butler’s conviction became final The statute of limitations for bringing a federal habeas petition challenging a state conviction begins to run on “the date on which the [state] judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). When a habeas petitioner has pursued relief on direct appeal through his state’s highest court, his conviction becomes final ninety days after the highest court’s judgment is entered, upon the expiration of time for filing an application for writ of certiorari with the United States Supreme Court. Roberts v. Cockrell, 319 F.3d 690, 693 (5th Cir.2003). However, “[i]f the defendant stops the appeal process before that point,” as Butler did here, “the conviction becomes final when the time for seeking further direct review in the state court expires.” Id. at 694; see also Foreman v. Dretke, 383 F.3d 336, 338 (5th Cir.2004) (Section 2244(d)(1)(A) gives alternative routes for finalizing a conviction: either direct review is completed or the time to pursue direct review expires). Although federal, not state, law determines when a judgment is final for federal habeas purposes, a necessary part of the finality inquiry is determining whether the petitioner is still" }, { "docid": "11268641", "title": "", "text": "immediately, we hold that it abused its discretion in dismissing his petition rather than retaining jurisdiction and entering a stay pending the outcome of the state proceedings. I. In December, 1994, Nowaczyk was convicted in New Hampshire state court on charges of arson, conspiracy to commit arson, and witness tampering. The New Hampshire Supreme Court affirmed his conviction on direct appeal, entering its final judgment on January 24, 1997. No-waczyk did not seek further review from the United States Supreme Court. Under AEDPA, Nowaczyk had one year “from the date on which [his conviction] became final by the conclusion of direct review or the expiration of the time for seeking such review” in which to pursue federal habeas relief under § 2254. 28 U.S.C. § 2244(d)(1)(A). The parties agree that the one-year limitations period began on April 24, 1997, which marks the end of the 90-day period for filing a petition for writ of certiorari from the United States Supreme Court. See Donovan v. Maine, 276 F.3d 87, 91 (1st Cir.2002) (“[Section 2244(d)(1) provides for tolling during the ninety-day period in which the petitioner would have been allowed to ask the United States Supreme Court to grant certiorari to review the [state court’s] denial of his direct appeal (the fact that the petitioner did not seek certiorari is immaterial).”). The statute of limitations is tolled whenever “a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C. § 2244(d)(2). We have held that an application for state post-conviction relief is “pending”' — and, thus, the statute of limitations is tolled— not only when the application “actually is being considered by the trial or appellate court, but also during the ‘gap’ between the trial court’s initial disposition and the petitioner’s timely filing of a petition for review at the next level.” Currie v. Matesanz, 281 F.3d 261, 266 (1st Cir.2002) (internal quotation marks omitted); see also Carey v. Saffold, — U.S. -, 122 S.Ct. 2134, 2136, 153 L.Ed.2d 260 (2002) (confirming the prevailing view that an application remains pending" }, { "docid": "22922235", "title": "", "text": "writ of habeas corpus. Under the AEDPA, however, a state prisoner must file his federal habeas corpus petition within one year of the date his state conviction became final. 28 U.S.C. § 2244(d)(1). White’s conviction became final on December 19, 1995, when he dismissed his direct appeal. See 28 U.S.C. § 2244(d)(1) (statute of limitations runs from “the conclusion of direct review or the time for seeking such review”). Because White’s conviction became final prior to the AEDPA’s enactment, the earnest date the one-year statute of limitations for filing his federal habeas petition would have begun to run was the date the AEDPA went into effect, April 24, 1996. See Nino v. Galaza, 188 F.3d 1003, 1006 (9th Cir.1999). On that date, however, White had a petition for a writ of habeas corpus pending before the Superior Court of Guam. Thus, the statute of limitations was further tolled pursuant to 28 U.S.C. § 2244(d)(2), which provides tolling for “[t]he time during which a properly filed application for State post-conviction or other collateral review ... is pending.” The statute of limitations remained tolled under 28 U.S.C. § 2244(d)(2) while White sought a writ of habeas corpus through Guam’s territorial procedures. See Nino, 183 F.3d at 1006. Consistent with those procedures, White presented his habeas petition to the Superior Court of Guam and then to the Supreme Court of Guam. The latter court denied White’s petition on December 16, 1998. That denial ended statutory tolling of the statute of limitations under § 2244(d)(2), and the one-year statute of limitations began to run. White did not file his federal habeas petition in the United States District Court until March 13, 2000. White’s federal petition, therefore, is barred by the one-year statute of limitations unless he is entitled to some additional period of tolling. White argues he is entitled to an additional 90 days of tolling from December 16, 1998, the date the Supreme Court of Guam denied his territorial habeas petition, because during that 90-day period he could have filed a petition for a writ of certiorari with the United States Supreme Court." }, { "docid": "22370991", "title": "", "text": "9th Cir. R. 22-l(c). A motions panel granted the request, and issued a COA on the issue of “whether the district court erred by dismissing the petition as untimely.” II We begin with the relevant timeliness calculations. Effective April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132,110 Stat. 1214 (“AED-PA”). AEDPA, of course, imposed a one-year statute of limitations for state prisoners filing federal petitions for habeas corpus. See 28 U.S.C. § 2244(d)(1). Thus, under AEDPA, A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from ... the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review. Id. § 2244(d)(1)(A). The California Supreme Court denied Miranda’s petition for review on July 15, 1999. His conviction became final ninety days thereafter — on October 13, 1999— when the time for him to file a petition for certiorari with the United States Supreme Court expired. See Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.1999). Accordingly, under AEDPA, Miranda had until October 13, 2000 to file his federal habeas petition. See Patterson v. Stewart, 251 F.3d 1243, 1245-46 (9th Cir.2001) (explaining that time limits under AEDPA are calculated in accordance with the provisions of Fed.R.Civ.P. 6(a)). Because he did not file his petition until December 5, 2000, the petition was fifty-three days late. Absent some kind of tolling, then, the petition was, as the district court concluded, untimely filed. Ill Miranda contends that even though his petition was filed after the 1-year statute of limitations had passed, the district court nonetheless should have applied equitable tolling to find the filing was timely. Miranda bears the burden of showing that this extraordinary exclusion should apply to him. See United States v. Marolf, 173 F.3d 1213, 1218 n. 3 (9th Cir.1999). Miranda’s argument centers around a letter he received from his appointed appellate counsel. On July 28," }, { "docid": "15554900", "title": "", "text": "containing his submissions to New York state courts on direct and collateral appeals during a period of fourteen years. Petitioner’s grounds for habeas relief include the failure to disclose exculpatory evidence, ineffective assistance of trial and appellate counsel, a Fourth Amendment violation, the use of perjured testimony, and a Batson claim. Petitioner also moves for appointment of counsel pursuant to 18 U.S.C. § 3006A. Discussion Respondent does not address the merits of petitioner’s claims, but urges the Court to dismiss Hughes’ petition as untimely and as barred by the doctrine of laches. 1. Statute of Limitations The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which became effective on April 24, 1996, establishes a one-year statute of limitations from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review” for the filing of a habeas application seeking relief from a state court conviction. 28 U.S.C. § 2244(d)(1)(A). The running of the limitations period is tolled for the time period during which “a properly filed application” for collateral review is pending in state court. Id. § 2244(d)(2). The New York Court of Appeals denied petitioner leave to appeal his conviction on September 16, 1988. In petitioner’s case, the one-year time limit would have begun to accrue on December 16, 1988, at the conclusion of the ninety days during which he could have sought certiorari in the United States Supreme Court. See Rule 13 of Rules of the Supreme Court of the United States. But as of December 16, 1988, Hughes’ fifth § 440 motion was already pending in state court, which operated to immediately toll the running of the statute of limitations. Until September 12, 1989, when petitioner’s sixth motion was denied, Hughes had a continuous stream of post-conviction applications pending in state courts. From September 12, 1989, the statute of limitations ran for four months, until January 11, 1990, when Hughes filed his seventh application for collateral review, thereby restarting the tolling provision. That motion was finally resolved against petitioner on August 5, 1996. Thus," }, { "docid": "1319560", "title": "", "text": "period of limitation ran from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A conviction becomes final under § 2244(d)(1)(A), and the statute of limitations begins to run, when “the time for filing a petition for a writ of certiorari for direct review in the United States Supreme Court has expired.” Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000) (citing Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir.2000)). Petitioner’s direct appeal to the Michigan Supreme Court came to an end on May 30,1997, when the supreme court denied leave to appeal. Ninety days later, on August 28, 1997, Petitioner’s opportunity to seek a writ of certiorari in the Supreme Court of the United States expired. See Sup.Ct. R. 13.1. Therefore, Petitioner’s conviction became final, for purposes of § 2244(d)(1)(A), on August 28, 1997. See Bronaugh, 235 F.3d at 283. [2] Nonetheless, the statute of limitations is tolled while a prisoner’s properly filed application for post-conviction review is under consideration in state court. See 28 U.S.C. § 2244(d)(2) (“The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.”). An application remains pending until it “has achieved final resolution through the state’s post-conviction procedures.” Carey v. Saffold, 536 U.S. 214, 220, 122 S.Ct. 2134, 153 L.Ed.2d 260 (2002). However, Petitioner allegedly filed his first motion for relief from judgment on December 21, 1998. By then, the one-year period of limitation had expired. The filing of Petitioner’s motion did not delay the date on which Petitioner’s conviction became final, Payton v. Brigano, 256 F-3d 405, 408 (6th Cir.2001), cert. denied, 534 U.S. 1135, 122 S.Ct. 1081, 151 L.Ed.2d 981 (2002), and the period of limitations did not begin to run anew when the state court concluded its review of Petitioner’s motion. Searcy v. Carter, 246 F.3d 515, 519 (6th Cir.), cert. denied, 534 U.S." }, { "docid": "12377028", "title": "", "text": "on November 7, 2002. When this was denied, he unsuccessfully sought cer-tiorari from the North Carolina Court of Appeals which denied the request , on September 17, 2003. Shortly thereafter, petitioner submitted his habeas petition to this Court. Respondents request dismissal on the ground that the petition was filed outside of the one-year limitation period imposed by the Antiterrorism and Effective Death Penalty Act of 1996, P.L. 104-132 (“AED-PA”). 28 U.S.C. § 2244(d)(1). The AED-PA amendments apply to all Section 2254 petitions filed after its effective date of April 24, 1996. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). The limitation period starts running on the date when the judgment of conviction becomes final at the end of direct review. Harris v. Hutchinson, 209 F.3d 325 (4th Cir.2000). However, it is tolled while state post-conviction proceedings are pending. Harris, supra. The suspension is for “the entire period of state post-conviction proceedings, from initial filing to final disposition by the highest court (whether decision on the merits, denial of certiorari, or expiration of the period of time to seek further appellate review).” Taylor v. Lee, 186 F.3d 557, 561 (4th Cir.1999), cert. denied, 528 U.S. 1197, 120 S.Ct. 1262, 146 L.Ed.2d 117 (2000). However, the tolling does not include the time to file a certiorari petition to the United States Supreme Court from denial of state post-conviction relief. Ott v. Johnson, 192 F.3d 510, 513 (5th Cir.1999), cert. denied, 529 U.S. 1099, 120 S.Ct. 1834, 146 L.Ed.2d 777 (2000). The central issue in this case centers on the question of when petitioner’s convictions became final for purposes of AEDPA. The applicable portion of the statute itself states that the one-year limitation period shall begin to run on “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1). Although the language of the statute seems clear enough on its face, the parties have differing views as to when direct review of petitioner’s convictions ended. Respondents assert that North Carolina’s" }, { "docid": "22250336", "title": "", "text": "petition for review. On June 26, 1998, Bowen filed a petition for the issuance of a certificate of probable cause, claiming that his sentence was cruel and unusual punishment. Bowen, however, did not challenge the district court’s dismissal of his habeas petition as untimely. The district court granted a certificate of appealability, but limited the issue on appeal to whether Bowen’s habeas petition had been timely filed under 28 U.S.C. § 2244(d)(1)(A). DISCUSSION The issue certified for appeal effectively asks: When a habeas petitioner has sought direct review of a judgment of conviction in the highest state court, but thereafter does not file a petition for a writ of certio-rari from the United States Supreme Court, does the AEDPA’s one-year limitations period begin to run on (1) the date the state court enters its judgment or (2) ninety days later, when the period within which the prisoner can petition for a writ of certiorari from the United States Supreme Court expires? We hold that the period of “direct review” in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition. Therefore, when a petitioner fails to seek a writ of certiorari from the United States Supreme Court, the AEDPA’s one-year limitations period begins to run on the date the ninety-day period defined by Supreme Court Rule 13 expires. The AEDPA provides for a one-year period of limitation on habeas petitions: (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a • State court. The limitation period shall run from the latest of— (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.... 28 U.S.C. § 2244(d)(1)(A) (Supp.1999). Section 2244(d)(1)(A) includes within the definition of finality the period within which a petitioner can seek direct review of his conviction. See id. When" }, { "docid": "7032164", "title": "", "text": "simple: Was Curtiss’s petition for habeas corpus filed before the statute of limitations expired? A petitioner has one year from the time a state court judgment becomes final to apply for a federal writ of habeas corpus. 28 U.S.C. § 2244(d)(1)(A). A judgment is final, for these purposes, at “the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition [for a writ of certiorari].” Williams v. Bruton, 299 F.3d 981, 982 (8th Cir.2002) (quoting Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir.1998)). By Supreme Court rule, a petitioner has ninety days from the date of entry of judgment in a state court of last resort to petition for a writ of certiorari. Sup.Ct. R. 13. Curtiss’s direct appeal was dismissed by the Iowa Supreme Court on January 13, 1999. Taking into account the ninety days he had to petition for certiorari, Curtiss’s statute of limitations for filing a federal habeas claim began to run on April 13, 1999. “The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending should not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). Thus, while Curtiss would typically have to file his federal petition by April 13, 2000, the statute of limitations period would be tolled if during that time he filed a petition for post-conviction relief in state court. See Painter v. Iowa, 247 F.3d 1255, 1256 (8th Cir.2001). Even construing Curtiss’s pro se filings liberally, he did not initiate any action for post-conviction relief in state court until-at the earliest-May 24, 2000, the day he sent documents claiming he was innocent to the Story County Clerk of Court. Because the deadline for filing Curtiss’s federal petition passed on April 13, 2000, his later filing for post-conviction relief in state court cannot act to toll the federal statute of limitations. Painter, 247 F.3d at 1256. Curtiss notes that his state court petition was timely under Iowa law. See Iowa" }, { "docid": "5432544", "title": "", "text": "he filed his federal petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We review the district court’s denial of a petition for a writ of habeas corpus de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir.2000). III. Under either party’s construction, Wixom’s conviction became final after the AEDPA’s effective date. Hence, barring any tolling, Wixom had until one year after his conviction became final to file a federal habeas petition. See 28 U.S.C. § 2244(d)(1)(A), (d)(2). Section 2244(d)(1)(A) provides that the one-year limitations period “shall run from the latest of — (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Thus, under the statute, a judgment becomes “final” in one of two ways — either by the conclusion of direct review by the highest court, including the United States Supreme Court, to review the judgment, or by the expiration of the time to seek such review, again from the highest court from which such direct review could be sought. Cf. Bowen v. Roe, 188 F.3d 1157, 1158-59 (9th Cir.1999) (“We hold that the period of ‘direct review’ in 28 U.S.C. § 2244(d)(1)(A) includes the period within which a petitioner can file a petition for a writ of certiorari from the United States Supreme Court, whether or not the petitioner actually files such a petition.”); Smith v. Bowersox, 159 F.3d 345, 348 (8th Cir.1998), cert. denied, 525 U.S. 1187, 119 S.Ct. 1133, 143 L.Ed.2d 126 (1999) (“[T]he running of the statute of limitations imposed by § 2244(d)(1)(A) is triggered by either (i) the conclusion of all direct criminal appeals in the state system, followed by either the completion or denial of cer-tiorari proceedings before the United States Supreme Court; or (ii) if certiorari .was not sought, then by the conclusion of all direct criminal appeals in the state system followed by the expiration of the time allotted for filing a petition for the writ.”). Wixom argues that the issuance of the mandate by the Washington Court of Appeals signified" }, { "docid": "1319559", "title": "", "text": "Effective Death Penalty Act of 1996 (“AEDPA”) established a one-year period of limitation for habeas petitioners who attack their state court convictions. See 28 U.S.C. § 2244(d). The limitation period runs from the latest of (A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (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; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or (D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. 28 U.S.C. § 2244(d)(1). Because subsections (B) through (D) are not applicable here, the one-year period of limitation ran from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). A conviction becomes final under § 2244(d)(1)(A), and the statute of limitations begins to run, when “the time for filing a petition for a writ of certiorari for direct review in the United States Supreme Court has expired.” Bronaugh v. Ohio, 235 F.3d 280, 283 (6th Cir.2000) (citing Isham v. Randle, 226 F.3d 691, 694-95 (6th Cir.2000)). Petitioner’s direct appeal to the Michigan Supreme Court came to an end on May 30,1997, when the supreme court denied leave to appeal. Ninety days later, on August 28, 1997, Petitioner’s opportunity to seek a writ of certiorari in the Supreme Court of the United States expired. See Sup.Ct. R. 13.1. Therefore, Petitioner’s conviction became final, for purposes of § 2244(d)(1)(A), on August 28, 1997. See Bronaugh, 235 F.3d at 283. [2] Nonetheless, the statute of limitations is tolled while a prisoner’s properly filed application" }, { "docid": "8108062", "title": "", "text": "his opposition to the Motion but has failed to do so. The matter now stands submitted. II. ANALYSIS A. Statute of Limitations The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) imposes a one-year statute of limitations upon a state prisoner seeking federal habeas review of his or her underlying state conviction and sentence. 28 U.S.C. § 2244(d)(1). AED-PA’s one-year limitations period begins to run from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” 28 U.S.C. § 2244(d)(1)(A). As discussed above, Petitioner was convicted on June 26, 2002, and the Court of Appeal affirmed his conviction on October 15, 2003. Under California law, the judgment became final thirty days later, on November 14, 2003. Cal. Ct. R. 24(b)(1). Petitioner did not file a petition for review with the California Supreme Court within the ten day period required by Cal. Ct. R. 28(e)(1). Therefore, for purposes of federal habeas review, Petitioner’s conviction became final on November 24, 2003. 28 U.S.C. § 2244(d)(1)(A); see also Duncan, 297 F.3d at 813 (conviction became final forty days after the Court of Appeal filed its opinion). AED-PA’s one-year statute of limitations period then started to run the next day, on November 25, 2003, and ended on November 25, 2004. 28 U.S.C. § 2244(d)(1)(A); see also Patterson v. Stewart, 251 F.3d 1243, 1245-47 (9th Cir.2001) (the statute of limitations begins to run on the day following the day of the triggering event pursuant to Fed. R. Civ. P. 6(a)). Petitioner did not constructively file his pending Petition until February 16, 2006 — 448 days or approximately fifteen months after the statute had run. Therefore, the pending Petition is time-barred unless Petitioner is entitled to statutory or equitable tolling, or an alternate start date to the AEDPA limitations period under 28 U.S.C. § 2244(d)(1). B. Statutory Tolling 1. State Habeas Petitions AEDPA’s one-year limitations period may be tolled for “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment" }, { "docid": "23076675", "title": "", "text": "limitations period for filing a writ of habeas corpus by a person in state custody. Under 28 U.S.C. § 2244(d)(1)(A), the limitations period commences from “the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review.” Moreover, “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.” 28 U.S.C. § 2244(d)(2). For convictions final before the effective date of the AEDPA, we have applied a one-year grace period allowing habeas petitioners until April 24, 1997 to file their claims. As noted, however, under § 2244(d)(2) the time between Ott’s filing of his state habeas application and its denial does not count against the one-year limitations period. Ott filed his state habeas application on April 23, 1997, one day before the expiration of the grace period. The limitations period expired on Friday, September 19, 1997, one day after the Texas Court of Criminal Appeals denied the habeas application on September 18, 1997. Ott asserts two bases that would prevent his September 23, 1997 application from being deemed untimely filed. First, he contends that the ninety days in which a state habe-as petitioner may petition the United States Supreme Court for a writ of certio-rari, even if no petition for certiorari is filed, should toll the limitations period. Second, he asserts that the limitations period in this case should be extended by the doctrine of equitable tolling. I Ott first contends that § 2244(d)(2), which tolls the limitations period while a “properly filed application for State post-conviction or other collateral review” is pending, includes the ninety days in which a state habeas petitioner may file a petition for writ of certiorari with the United States Supreme Court. He maintains that expiration of the limitations period prior to the time in which he could seek Supreme Court review would unfairly penalize those who desire to petition for cer- tiorari. We review this question" } ]

[ { "docid": "22730410", "title": "", "text": "than hiring already trained outsiders, Kaiser established a training program to train its production workers to fill craft openings. Selection of craft trainees was made on the basis of seniority, with the proviso that at least 50% of the new trainees were to be black until the percentage of black skilled craftworkers in the Gramercy plant approximated the percentage of blacks in the local labor force. See 415 F. Supp. 761, 764. During 1974, the first year of the operation of the Kaiser-USWA affirmative action plan, 13 craft trainees were selected from Gramercy’s production work force. Of these, seven were black and six white. The most senior black selected into the program had less seniority than several white production workers whose bids for admission were, rejected. Thereafter one of those white production workers, respondent Brian Weber (hereafter respondent), instituted this class action in the United States District Court for the Eastern District of Louisiana. The complaint alleged that the filling of craft trainee positions at the Gramercy plant pursuant to the affirmative action program had resulted in junior black employees’ receiving training in preference to senior white employees, thus discriminating against respondent and other similarly situated white employees in violation of §§703 (a) and (d) of Title VII. The District Court held that the plan violated Title VII, entered a judgment in favor of the plaintiff class, and granted a permanent injunction prohibiting Kaiser and the USWA “from denying plaintiffs, Brian F. Weber and all other members of the class, access to on-the-job training programs on the basis of race.” App.171. A divided panel of the Court of Appeals for the Fifth Circuit affirmed, holding that all employment preferences based upon race, including those preferences incidental to bona fide affirmative action plans, violated Title VII's prohibition against racial discrimination in employment. 563 F. 2d 216 (1977). We granted certiorari. 439 U. S. 1045 (1978). We reverse. II We emphasize at the outset the narrowness of our inquiry. Since the Kaiser-USWA plan does not involve state action, this case does not present an alleged violation of the Equal Protection Clause of" } ]

[ { "docid": "2242739", "title": "", "text": "that process has been established and employers have made clear their selection criteria, they may not then invalidate the test results, thus upsetting an employee’s legitimate expectation not to be judged on the basis of race. Doing so, absent a strong basis in evidence of an impermissible disparate impact, ... is antithetical to the notion of a workplace where individuals are guaranteed equal opportunity regardless of race. 129 S.Ct. at 2677. In other words, when an employer, acting ex ante, although in the light of past discrimination, establishes hiring or promotion procedures designed to promote equal opportunity and eradicate future discrimination, that may constitute an affirmative action plan. But where an employer, already having established its procedures in a certain way — such as through a seniority system — throws out the results of those procedures ex post because of the racial or gender composition of those results, that constitutes an individualized grant of employment benefits which must be individually justified, and not affirmative action. The affirmative action plans in Johnson and Weber were quite different from such make-whole relief. The plan in Weber set out to achieve a better future racial balance among skilled craftworkers at Kaiser Steel’s Gramercy plant, by requiring that 50% of production workers chosen for the skilled craftworker training program be black. See 443 U.S. at 199, 99 S.Ct. 2721. This plan was adopted pursuant to an affirmative-action provision in the collective bargaining agreement recently negotiated between the United Steelworkers and Kaiser. Id. at 197-98, 99 S.Ct. 2721. The plaintiff, Brian Weber, argued that the plan violated § 703(a) and (d) because he was denied entry into the training program, in favor of less senior black workers. But the Supreme Court treated the plan in Weber as affirmative action. That result is readily explained by the Local 28 distinction. Instead of, say, granting retroactive seniority to specific individual black production workers, or throwing out the results of previous selection processes, the plan benefited all members of the racially defined class in a forward-looking manner. And it was adopted in a newly negotiated collective bargaining agreement" }, { "docid": "22354009", "title": "", "text": "basis for a different rule regarding a plan’s alleged violation of Title VII. This case also fits readily within the analytical framework set forth in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973). Once a plaintiff establishes a prima facie case that race or sex has been taken into account in an employer’s employment decision, the burden shifts to the employer to articulate a nondiscriminatory rationale for its decision. The existence of an affirmative action plan provides such a rationale. If such a plan is articulated as the basis for the employer’s decision, the burden shifts to the plaintiff to prove that the employer’s justification is pre-textual and the plan is invalid. As a practical matter, of course, an employer will generally seek to avoid a charge of pretext by presenting evidence in support of its plan. That does not mean, however, as petitioner suggests, that reliance on an affirmative action plan is to be treated as an affirmative defense requiring the employer to carry the burden of proving the validity of the plan. The burden of proving its invalidity remains on the plaintiff. The assessment of the legality of the Agency Plan must be guided by our decision in Weber, supra. In that case, the Court addressed the question whether the employer violated Title VII by adopting a voluntary affirmative action plan designed to “eliminate manifest racial imbalances in traditionally segregated job categories.” Id., at 197. The respondent employee in that case challenged the employer’s denial of his application for a position in a newly established craft training program, contending that the employer’s selection process impermissibly took into account the race of the applicants. The selection process was guided by an affirmative action plan, which provided that 50% of the new trainees were to be black until the percentage of black skilled craft-workers in the employer’s plant approximated the percentage of blacks in the local labor force. Adoption of the plan had been prompted by the fact that only 5 of 273, or 1.83%, of skilled craftworkers at the plant were black, even though the work force" }, { "docid": "18816085", "title": "", "text": "treatment, and would apply a less exacting standard of review to benign remedial discrimination against whites, requiring only that the program be substantially related to the achievement of an important government objective. Id. at 356-62, 98 S.Ct. at 2781-84. Justice Stevens, joined by Justices Burger, Stewart, and Rehnquist, interpreted Title VI as prohibiting the Davis quota program, making it unnecessary to consider the constitutional issues. Id. at 412, 98 S.Ct. at 2810 (Stevens, J., concurring in part and dissenting in part). One year after the Bakke decision, the Supreme Court once again faced the question of the legality of a quota system. In United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Supreme Court approved a voluntary affirmative action plan, jointly established by an employer and a union, which allocated at least 50% of the openings in in-plant craft training programs for black employees. Plaintiff, a white male, had instituted a Title VII action protesting his exclusion from the training program in favor of black employees with less seniority. The Supreme Court defined the issue narrowly: “The only question before us is the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and for the purpose provided in the [instant] plan.” Id. at 200, 99 S.Ct. at 2725 (emphasis in original). A majority of the Court found that although the language of Title VII appeared to proscribe the conduct engaged in by the employer and union, it was never intended to prohibit private and voluntary affirmative action aimed at correcting traditional segregation. Id. at 203-209, 99 S.Ct. at 2726-2730. In reaching its decision, the Court found salient the following features of the plan: that it did not unnecessarily trammel the interests of white workers, that it did not create an absolute bar to the advancement of white workers, and that the plan was temporary and was not intended to maintain racial balance, but rather would end as soon as the percentage of black" }, { "docid": "11581268", "title": "", "text": "Fe Trail Transp. Co., 427 U.S. 273, 280, 96 S.Ct. 2574, 2579, 49 L.Ed.2d 493 (1976)). In 1979, however, the Court interpreted the statute’s “antidiscriminatory strategy” in a “fundamentally different way”, id. at 644, 107 S.Ct. at 1458, holding in the seminal case of United Steelworkers v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), that Title VU’s prohibition against racial discrimination does not condemn all voluntary race-conscious affirmative action plans. In Weber, the Court considered a plan implemented by Kaiser Aluminum & Chemical Corporation. Prior to 1974, Kaiser hired as craftworkers only those with prior craft experience. Id. at 198, 99 S.Ct. at 2724-25. Because they had long been excluded from craft unions, Blacks were unable to present the credentials required for craft positions. Id. Moreover, Kaiser’s hiring practices, although not admittedly discriminatory with regard to minorities, were questionable. Id. at 210, 99 S.Ct. at 2730. As a consequence, while the local labor force was about 39% Black, Kaiser’s labor force was less than 15% Black and its crafts-work force was less than 2% Black. Id. at 198, 99 S.Ct. at 2724-25. In 1974, Kaiser entered into a collective bargaining agreement which contained an affirmative action plan. The plan reserved 50% of the openings in an in-plant craft-training program for Black employees until the percentage of Black craft-workers in the plant reached a level commensurate with the percentage of Blacks in the local labor force. Id. at 198, 99 S.Ct. at 2724-25. During the first year of the plan’s operation, 13 craft-trainees were selected, seven of whom were Black and six of whom were White. Id. at 199, 99 S.Ct. at 2725. Thereafter, Brian Weber, a White production worker, filed a class action suit, alleging that the plan unlawfully discriminated against White employees under Title VII. Relying upon a literal reading of subsections 703(a) and (d) of the Act, 42 U.S.C. S 2000e-2(a), (d), and upon the Court’s decision in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. at 273, 96 S.Ct. at 2574, where the Court held that Title VII forbids discrimina tion against" }, { "docid": "15624342", "title": "", "text": "resulting from societal norms. Some forms of discrimination are so subtle or so accepted that they defy proof other than by statistics. In Weber, the exclusion of blacks from craft unions was so pervasive as to warrant'judicial notice. Weber, 443 U.S. at 198 n. 1, 99 S.Ct. at 2725 n. 1. The promotion of Joyce to the road dispatcher position aptly served the Agency plan’s remedial purpose. Statistics contained in the plan show that not one of the Agency’s 238 skilled craft workers was a woman. Included in the skilled craft category are mechanics, body and fender repairers, construction inspectors, road maintenance workers, and road dispatchers. A plethora of proof is hardly necessary to show that women are generally underrepresented in such positions and that strong social pressures weigh against their participation. The promotion of Joyce was a lawful attempt to remedy the conspicuous imbalance. Weber also warns that a plan must not create an absolute bar to the advancement of other employees or unnecessarily trammel the interests of other employees. 443 U.S. at 208, 99 S.Ct. at 2729. The more closely a plan adheres to its remedial purpose, the less likely it is that the plan will unreasonably infringe upon the interests of , other employees. See Setser, 657 F.2d at 968. The affirmative action plan in Weber did not deprive white employees of opportunities for advancement, but created additional opportunities by establishing a new training program for both blacks and whites. Weber, 443 U.S. at 198, 99 S.Ct. at 2724. Thus, although black employees received training in preference to senior white employees, the expansion of opportunities previously limited by seniority prevented undue infringement upon non-minority interests. While the La Riviere plan did not necessarily create new openings, it did admit both male and female applicants. As in Weber, the La Riviere plan reserved 50% of the openings in the program for applicants from the discriminated group. While the Agency plan does not establish specific programs for recruitment, hiring, training, or promotion, it does lay a solid foundation for affirmative action. It assigns tasks and presents timetables for achieving" }, { "docid": "16528834", "title": "", "text": "dispute that plaintiff and Taxman have established a prima facie case; indeed, the Board’s concession that it took race into account in making the employment decision is sufficient in and of itself to establish a prima facie case. Higgins v. Vallejo, 823 F.2d 351, 355 (9th Cir.1987), cert. denied, 489 U.S. 1051, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). The burden, therefore, shifts to the Board to articulate a legitimate, nondiseriminatory reason for its action. Id. “The existence of an affirmative action plan provides such a rationale”. Id. The Board having met its burden of production, the burden shifts back to plaintiff and Taxman to show that the plan is invalid. Id. Plaintiff and Taxman at all times bear the burden of proving the plan’s invalidity. Id. A. Supreme Court Authority on Reverse Discrimination Under Title VII: Weber and Johnson This court’s analysis of the Board’s affirmative action plan must begin with the Supreme Court’s decision in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). The Court in Weber considered the legality of an affirmative action plan which was adopted pursuant to a collective bargaining agreement. The plan reserved for black employees 50% of the openings in an in-plant training program designed to train unskilled production workers to become eraftworkers until such time as the percentage of black craft-workers was commensurate with the percentage of blacks in the labor force. Id. at 198-99, 99 S.Ct. at 2725. Aside from the 50% of the openings reserved for black employees, workers were selected for the training program on the basis of seniority. A white employee instituted a class action complaining that because the plan resulted in the admission to the training program of black employees with less seniority than some white employees who were denied admission, it violated Title VII. Id. at 199, 99 S.Ct. at 2725. The Supreme Court characterized the issue before it as follows: “The only question before us is the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action" }, { "docid": "2242721", "title": "", "text": "Caldero and Arroyo Intervenors, is that the City Defendants’ voluntary implementation of the settlement agreement was a valid affirmative action plan. The second, raised or suggested in somewhat different ways as to various specific Offerees by all three of these parties, is the “strong basis in evi dence” defense recognized in Ricci. There is no dispute that to the extent that the City Defendants’ actions are not justified by one of these defenses, the City Defendants violated the Brennan Plaintiffs’ § 703(a) rights to be free from disparate treatment. We will consider each defense in turn. IV. Affirmative Action The Caldero and Arroyo Intervenors argue that the retroactive seniority awards were justified as part of an affirmative action plan, valid under Supreme Court precedent. They contend that, even if non-remedial, the seniority awards therefore do not violate § 703(a). Thus, according to these intervenors, even if, at the time the City Defendants implemented the settlement agreement, there was no reason to think that the individual recipients of retroactive seniority were victims of discrimination, such seniority would still be valid. The district court agreed in part, and held that, except for the retroactive awards of layoff seniority, the retroactive seniority awards constituted permissible affirmative action. We, instead, hold that the City Defendants’ implementation of the settlement agreement was not affirmative action at all, let alone permissible affirmative action; and that it was, therefore, error for the district court to apply such an “affirmative action” defense to the Brennan Plaintiffs’ claims. A. Legal Background The Supreme Court first recognized that a valid affirmative action plan constituted a defense to a § 703(a) reverse-discrimination lawsuit in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). In Weber, a union and an employer collectively bargained for an affirmative action plan under which 50% of the openings in an in-plant craft training program would be reserved for black employees, until the percentage of black craft workers in the plant reached a level commensurate with the percentage of blacks in the local labor force. A white production worker, who" }, { "docid": "11581302", "title": "", "text": "as “the Board does not even attempt to show that its affirmative action plan was adopted to remedy past discrimination or as the result of a manifest imbalance in the employment of minorities,” 832 F.Supp. at 845, the Board has failed to satisfy the first prong of the Weber test. United States v. Board of Educ. of Township of Piscataway, 832 F.Supp. 836, 848 (D.N.J.1993). We turn next to the second prong of the Weber analysis. This second prong requires that we determine whether the Board’s policy “unnecessarily trammel[s] ... [nonminority] interests. ...” Weber, 443 U.S. at 208, 99 S.Ct. at 2730. Under this requirement, too, the Board’s policy is deficient. We begin by noting the policy’s utter lack of definition and structure. While it is not for us to decide how much diversity in a high school facility is “enough,” the Board cannot abdicate its responsibility to define “racial diversity” and to determine what degree of racial diversity in the Piscataway School is sufficient. The affirmative action plans that have met with the Supreme Court’s approval under Title VII had objectives, as well as benchmarks which served to evaluate progress, guide the employment decisions at issue and assure the grant of only those minority preferences necessary to further the plans’ purpose. Johnson, 480 U.S. at 621-22, 107 S.Ct. at 1446 (setting forth long-range and short-term objectives to achieve “‘a statistically measurable yearly improvement in hiring, training and promotion of minorities and women ... in all major job classifications where they are underrepresented’ ”); Weber, 443 U.S. at 193, 99 S.Ct. at 2721 (reserving for Black employees 50% of the openings in craft-training programs until the percentage of Black craftworkers reflected the percentage of Blacks in the available labor force). By contrast, the Board’s policy, devoid of goals and standards, is governed entirely by the Board’s whim, leaving the Board free, if it so chooses, to grant racial preferences that do not promote even the policy’s claimed purpose. Indeed, under the terms of this policy, the Board, in pursuit of a “racially diverse” work force, could use affirmative action to" }, { "docid": "13565527", "title": "", "text": "force would satisfy the employer’s burden. This list of ways to meet the employer’s burden of producing some evidence of a remedial purpose is merely suggestive, not exhaustive, of appropriate methods. The second burden on the employer in a reverse discrimination suit is to produce some evidence that its affirmative action plan is reasonably related to the plan’s remedial purpose. The goals and timetables for the program should be reasonably related to such considerations as the racial imbalance of the work force, the availability of qualified applicants, and the number of employment opportunities available. Weber tells us that a plan must “not unnecessarily trammel the interests of the white employees.” 443 U.S. at 208, 99 S.Ct. at 2730. The specifics of the plan approved in Weber indicate some guidelines for private affirmative action plans. The Weber plan did “not result in the discharge of white workers and their replacement with new black hires.” Id. at 208, 99 S.Ct. at 2730. Other courts have also recognized this characteristic as an indicia of a permissible plan. Local 35 v. City of Hartford, 625 F.2d 416, 425 (2d Cir. 1980); United States v. City of Miami, Fla., 614 F.2d 1322, 1339 (5th Cir. 1980); United States v. City of Alexandria, 614 F.2d 1358, 1366 (5th Cir. 1980); McLaughlin v. Great Lakes Dredge & Dock Co., 495 F.Supp. 857 (N.D.Ohio 1980); Baker v. City of Detroit, 483 F.Supp. 930, 983-86 (E.D.Mich.1979); Tangren v. Wackenhut Services, Inc., 480 F.Supp. 539 (D.Nev.1979). Also, the Weber plan did not create “an absolute bar to the advancement of white employees.” 443 U.S. at 208, 99 S.Ct. at 2730. In Weber, the plan reserved “for black employees 50% of the openings in an in-plant craft-training program until the percentage of black craftworkers in the plant [was] commensurate with the percentage of blacks in the local labor force.” Id. at 197, 99 S.Ct. at 2724. Finally, the Weber plan was characterized as a temporary measure. Id. at 208, 99 S.Ct. at 2730, A plan should be used no longer than reasonably necessary to eliminate a conspicuous racial imbalance. Once an" }, { "docid": "18582808", "title": "", "text": "of racial, ethnic or sexual criteria in awarding contract Y-621 is facially violative of both 42 U.S.C. § 2000d and 49 U.S.C. § 1615. Although we agree with Porter that the use of racial, ethnic or sexual preferences as a basis to award government contracts appears to be contrary to the clear language of the statutes, we are constrained to follow the precedential mandates of the Supreme Court. The Supreme Court has recently stated, “[i]t is now well established that government bodies ... may constitutionally employ racial classifications essential to remedy unlawful treatment of racial or ethnic groups subject to discrimination.” United States v. Paradise, — U.S. -, -, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (1987). In United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979), the Court held that Congress, in Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended 42 U.S.C. § 2000e et seq., left free both private unions and employers to voluntarily employ a collectively bargained plan that reserves for black employees 50% of the opening positions in an in-plant craft-training program until the percentage of black craftsmen in the plant is commensurate with the percentage of blacks in the local labor force. In Weber, the respondent argued that Congress intended in Title VII to prohibit all race-conscious affirmative action plans. Respondent’s argument was based upon a literal interpretation of § 703(a) and (b) of Title VII. Those sections on their face make it unlawful to discriminate on the basis of race in the hiring and selection of apprentices for training programs. Weber, 443 U.S. at 201, 99 S.Ct. at 2726. In rejecting a literal interpretation of those statutes, the Court stated, “[i]t is a ‘familiar rule, that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.’ ” Id., (quoting Holy Trinity Church v. United States, 143 U.S. 457, 459, 12 S.Ct. 511, 512, 36 L.Ed. 226 (1892)). The Court stated that the prohibition" }, { "docid": "16528835", "title": "", "text": "in Weber considered the legality of an affirmative action plan which was adopted pursuant to a collective bargaining agreement. The plan reserved for black employees 50% of the openings in an in-plant training program designed to train unskilled production workers to become eraftworkers until such time as the percentage of black craft-workers was commensurate with the percentage of blacks in the labor force. Id. at 198-99, 99 S.Ct. at 2725. Aside from the 50% of the openings reserved for black employees, workers were selected for the training program on the basis of seniority. A white employee instituted a class action complaining that because the plan resulted in the admission to the training program of black employees with less seniority than some white employees who were denied admission, it violated Title VII. Id. at 199, 99 S.Ct. at 2725. The Supreme Court characterized the issue before it as follows: “The only question before us is the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and for the purpose provided in the Kaiser-USWA plan”. Id. at 200, 99 S.Ct. at 2725 (emphasis in original). The Court rejected the employees’ narrow, literal reading of Title VII and read that statute in light of its legislative history and the historical context in which it arose to conclude that it was not intended to be an absolute prohibition against all private, voluntary, race-conscious affirmative action programs. Id. at 201-08, 99 S.Ct. at 2726-30. Having concluded that Title VII does not prohibit all voluntary, race-conscious affirmative action programs by private employers, the Court stressed that its inquiry was limited in scope: “We need not today define in detail the line of demarcation between permissible and impermissible affirmative action plans”. Id. at 208, 99 S.Ct. at 2729-30. In determining that the specific plan at issue was permissible under the statute, the Court noted that the plan served the same purpose as Title VII: “to break down old patterns of racial segregation and hierarchy”. Id. The Court also" }, { "docid": "5474077", "title": "", "text": "F.2d 826 (5th Cir.1975); Morrow v. Crisler, 491 F.2d 1053 (5th Cir.1974); United States v. City of Alexandria, 614 F.2d 1358 (5th Cir.1980), their use is not mandated in every instance. Further, firm rules have not been established as to when quotas must be used. Instead, we have left the district courts with the responsible and difficult task of determining the outer boundaries of affirmative remedial relief. In contrast to the lack of authority describing when quotas must be used, the two leading Title VII quota cases — United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979); and Fullilove v. Klutznick, 448 U.S. 448, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) do provide guidance with respect to the analysis a district court should follow in making this decision. Weber involved a voluntary collective bargaining agreement between the United Steelworkers of America and Kaiser Aluminum and Chemical Corporation. The agreement, which covered terms and conditions of employment at Kaiser plants, contained a numerical hiring goal equal to the percentage of blacks in the local labor forces. Under the plan, on-the-job-training programs were established to help plants meet the goal, and 50% of the openings in the training programs were reserved for blacks. Several white production workers, who were rejected from the training program because of the quota, instituted a Title VII class action and secured an injunction against the implementation of the program. The Supreme Court reversed the decision enjoining the program but specifically refused to “define in detail the demarcation between permissible and impermissible affirmative action plans.” The court limited its holding to finding that the quota fell “on the permissible side of the line.” 99 S.Ct. at 2730. Despite their reluctance to dictate the precise limits on affirmative relief, however, the Court in Weber did illuminate the field to a certain degree by disclosing the analysis it followed in reaching the decision to approve the quota in that case. Before issuing its approval, the Court carefully reviewed the purpose and duration of the plan, as well as the plan's effect on third" }, { "docid": "16528833", "title": "", "text": "particularly probative, summary judgment may be granted. Id. at 249-50, 106 S.Ct. at 2510-11. Finally, in passing on such a motion, the court is not at liberty to weigh evidence or resolve factual disputes. Id. at 249, 255, 106 S.Ct. at 2510, 2513; Nathanson v. Medical College of Pennsylvania, 926 F.2d 1368, 1380 (3d Cir.1991). Rather, the court is bound to view the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in that party’s favor. Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986); Gray v. York Newspapers, Inc., 957 F.2d 1070, 1078 (3d Cir.1992). The claims of employment discrimination on the basis of race brought by plaintiff and Taxman are properly analyzed under the framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Johnson v. Transportation Agency, Santa Clara County, 480 U.S. 616, 626, 107 S.Ct. 1442, 1448, 94 L.Ed.2d 615 (1987). There is no dispute that plaintiff and Taxman have established a prima facie case; indeed, the Board’s concession that it took race into account in making the employment decision is sufficient in and of itself to establish a prima facie case. Higgins v. Vallejo, 823 F.2d 351, 355 (9th Cir.1987), cert. denied, 489 U.S. 1051, 109 S.Ct. 1310, 103 L.Ed.2d 579 (1989). The burden, therefore, shifts to the Board to articulate a legitimate, nondiseriminatory reason for its action. Id. “The existence of an affirmative action plan provides such a rationale”. Id. The Board having met its burden of production, the burden shifts back to plaintiff and Taxman to show that the plan is invalid. Id. Plaintiff and Taxman at all times bear the burden of proving the plan’s invalidity. Id. A. Supreme Court Authority on Reverse Discrimination Under Title VII: Weber and Johnson This court’s analysis of the Board’s affirmative action plan must begin with the Supreme Court’s decision in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). The Court" }, { "docid": "980482", "title": "", "text": "transferred to the position of locomotive fireman in 1976 were eligible for preference under the BRAC agreements, but that the two women had joined the company after the eligibility date. Counsel for B&O suggested at oral argument that the time limit for eligibility had been “waived” for their benefit. The black locomotive fireman who was hired in 1978 was not previously a B&O employee at all, but had been referred by the Maryland State Employment Service. These facts suggest that the lawfulness of B&O’s actions could not be judged entirely from the face of the Seniority Modification Agreements, even if those agreements were in the record. B. Applicability of Weber to B&O’s 1976 Decisions In Weber, the employee challenged on its face an affirmative action plan of mathematical simplicity. Craft trainees were chosen on the basis of seniority from the plant's production workers, subject to the limitation that at most fifty percent of the new trainees were to be white. 443 U.S. at 199, 99 S.Ct. at 2725. The training program was itself created as an affirmative action effort, and the selection process did not abrogate pre-existing seniority rights. Id. at 199, 99 S.Ct. at 2725; Id. at 215, 99 S.Ct. at 2734 (Blackmun, J., concurring). The Court noted that the craft admission plan was a temporary measure, effective only until the percentage of black skilled craft workers in the plant approximated the percentage of blacks in the local labor force. Id. at 208-09, 99 S.Ct. at 2730-2731; but see id. at 223 n.3, 99 S.Ct. at 2738 n.3 (Rehnquist, J., dissenting) (disputing this finding). The relative clarity of the facts in Weber contrasts starkly with the obscurity of the present record. Initially, B&O relied on self-serving conclusory statements in the Upton Affidavit, assuring the court that it never considered race and gender as factors except in the context of its efforts to overcome underutilization. Next, B&O defended the Seniority Modification Agreements, which, the record indicates, were strictly applicable to only two of the challenged hirings. B&O has provided no information concerning affirmative action policies, if any, for employees not" }, { "docid": "2242740", "title": "", "text": "different from such make-whole relief. The plan in Weber set out to achieve a better future racial balance among skilled craftworkers at Kaiser Steel’s Gramercy plant, by requiring that 50% of production workers chosen for the skilled craftworker training program be black. See 443 U.S. at 199, 99 S.Ct. 2721. This plan was adopted pursuant to an affirmative-action provision in the collective bargaining agreement recently negotiated between the United Steelworkers and Kaiser. Id. at 197-98, 99 S.Ct. 2721. The plaintiff, Brian Weber, argued that the plan violated § 703(a) and (d) because he was denied entry into the training program, in favor of less senior black workers. But the Supreme Court treated the plan in Weber as affirmative action. That result is readily explained by the Local 28 distinction. Instead of, say, granting retroactive seniority to specific individual black production workers, or throwing out the results of previous selection processes, the plan benefited all members of the racially defined class in a forward-looking manner. And it was adopted in a newly negotiated collective bargaining agreement rather than unilaterally by the employer in derogation of an earlier agreement. The plan in Johnson, likewise, did not grant individualized employment benefits to any specific women or racial minorities. The employer in Johnson, noting the underrepresentation of women in certain job classifications, decided to authorize the consideration of sex as one of several factors in deciding which of several qualified applicants to promote. 480 U.S. at 620-21, 107 S.Ct. 1442. Although this plan ultimately resulted in the promotion of a woman over a man who was otherwise slightly better qualified, see id. at 623-24, 107 S.Ct. 1442, the wheels were set in motion ex ante. The employer decided on a plan that benefited the entire class of women, and then it simply applied that plan in a particular instance. By way of contrast, the employer had not previously adopted a different, gender-neutral method of selecting employees for promotion and then opted to throw it out when confronted with the reality that a particular woman would not be promoted under that method. The Arroyo and" }, { "docid": "1775855", "title": "", "text": "Powell found the special admissions program constitutionally impermissible, applying strict scrutiny. He maintained that the “guarantee of equal protec tion cannot mean one thing when applied to one individual and something else when applied to a person of another color.” Id. at 289-90, 98 S.Ct. at 2748. Even under the strict scrutiny approach, however, a classification may survive if necessary to further a compelling state interest. Justice Powell examined each purpose proffered by the state in support of the special admissions program and found none compelling except the university’s interest in a diverse student body, a goal with First Amendment underpinnings. Id. at 311-12, 98 S.Ct. at 2759. He concluded that this interest would be more precisely served by an admissions program not employing an explicit racial classification. Id. at 319, 98 S.Ct. at 2763. A majority of the justices finding the special admissions program unlawful, the Court ordered that Bakke be admitted to medical school. The second case was United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). The plaintiff, a white male, instituted a Title VII action protesting his exclusion from a craft training program in favor of black employees with less seniority. The black workers were admitted to the program under an affirmative action plan reserving fifty percent of the trainee positions for blacks until the percentage of black skilled craft workers at the plaintiff’s workplace approximated the percentage of blacks in the local labor force. The Court defined the issue sharply. “The only question before us is the narrow statutory issue of whether Title VII forbids private employers and unions from voluntarily agreeing upon bona fide affirmative action plans that accord racial preferences in the manner and for the purpose provided in the [instant] plan.” Id. at 200, 99 S.Ct. at 2726 (emphasis in original). The Court rejected the plaintiff’s challenge, holding that the plan did not “unnecessarily trammel the interests of white employees.” Id. at 208, 99 S.Ct. at 2730. The Court noted that the plan was temporary, and posed no bar to the advancement of white employees." }, { "docid": "11581269", "title": "", "text": "less than 2% Black. Id. at 198, 99 S.Ct. at 2724-25. In 1974, Kaiser entered into a collective bargaining agreement which contained an affirmative action plan. The plan reserved 50% of the openings in an in-plant craft-training program for Black employees until the percentage of Black craft-workers in the plant reached a level commensurate with the percentage of Blacks in the local labor force. Id. at 198, 99 S.Ct. at 2724-25. During the first year of the plan’s operation, 13 craft-trainees were selected, seven of whom were Black and six of whom were White. Id. at 199, 99 S.Ct. at 2725. Thereafter, Brian Weber, a White production worker, filed a class action suit, alleging that the plan unlawfully discriminated against White employees under Title VII. Relying upon a literal reading of subsections 703(a) and (d) of the Act, 42 U.S.C. S 2000e-2(a), (d), and upon the Court’s decision in McDonald v. Santa Fe Trail Transp. Co., 427 U.S. at 273, 96 S.Ct. at 2574, where the Court held that Title VII forbids discrimina tion against Whites as well as Blacks, the plaintiffs argued that it necessarily followed that the Kaiser plan, which resulted in junior Black employees receiving craft training in preference to senior White employees, violated Title VII. Id. at 199, 99 S.Ct. at 2725. The district court agreed and entered a judgment in favor of the plaintiffs; the Court of Appeals for the Fifth Circuit affirmed. Id. at 200, 99 S.Ct. at 2725-26. The Supreme Court, however, reversed, noting initially that although the plaintiffs’ argument was not “without force”, it disregarded “the significance of the fact that the Kaiser-USWA plan was an affirmative action plan voluntarily adopted by private parties to eliminate traditional patterns of racial segregation.” Id. at 201, 99 S.Ct. at 2726. The Court then embarked upon an exhaustive review of Title VU’s legislative history and identified Congress’ concerns in enacting Title VU’s prohibition against discrimination— the deplorable status of Blacks in the nation’s economy, racial injustice, and the need to open employment opportunities for Blacks in traditionally closed occupations. Id. at 202-204, 99 S.Ct. at" }, { "docid": "22730408", "title": "", "text": "Mr. Justice Brennan delivered the opinion of the Court. Challenged here is the legality of an affirmative action plan- — collectively bargained by an employer and a union— that reserves for black employees 50% of the openings in an in-plant craft-training program until the percentage of black craftworkers in the plant is commensurate with the percentage of blacks in the local labor force. The question for decision is whether Congress, in Title VII of the Civil Rights Act of 1964, 78 Stat. 253, as amended, 42 U. S. C. § 2000e et seq., left employers and unions in the private sector free to take such race-conscious steps to eliminate manifest racial imbalances in traditionally segregated job categories. We hold that Title VII does not prohibit such race-conscious affirmative action plans. I In 1974, petitioner United Steelworkers of America (USWA) and petitioner Kaiser Aluminum & Chemical Corp. (Kaiser) entered into a master collective-bargaining agreement covering terms and conditions of employment at 15 Kaiser plants. The agreement contained, inter alia, an affirmative action plan designed to eliminate conspicuous racial imbalances in Kaiser’s then almost exclusively white craftwork forces. Black craft-hiring goals were set for each Kaiser plant equal to the percentage of blacks in the respective local labor forces. To enable plants to meet these goals, on-the-job training programs were established to teach unskilled production workers — black and white — -the skills necessary to become craft-workers. The plan reserved for black employees 50% of the openings in these newly created in-plant training programs. This case arose from the operation of the plan at Kaiser’s plant in Gramercy, La. Until 1974, Kaiser hired as craft-workers for that plant only persons who had had prior craft experience. Because blacks had long been excluded from craft unions, few were able to present such credentials. As a consequence, prior to 1974 only 1.83% (5 out of 273) of the skilled craftworkers at the Gramercy plant were black, even though the work force in the Gramercy area was approximately 39% black. Pursuant to the national agreement Kaiser altered its craft-hiring practice in the Gramercy plant. Rather" }, { "docid": "2242722", "title": "", "text": "would still be valid. The district court agreed in part, and held that, except for the retroactive awards of layoff seniority, the retroactive seniority awards constituted permissible affirmative action. We, instead, hold that the City Defendants’ implementation of the settlement agreement was not affirmative action at all, let alone permissible affirmative action; and that it was, therefore, error for the district court to apply such an “affirmative action” defense to the Brennan Plaintiffs’ claims. A. Legal Background The Supreme Court first recognized that a valid affirmative action plan constituted a defense to a § 703(a) reverse-discrimination lawsuit in United Steelworkers of America v. Weber, 443 U.S. 193, 99 S.Ct. 2721, 61 L.Ed.2d 480 (1979). In Weber, a union and an employer collectively bargained for an affirmative action plan under which 50% of the openings in an in-plant craft training program would be reserved for black employees, until the percentage of black craft workers in the plant reached a level commensurate with the percentage of blacks in the local labor force. A white production worker, who had not been selected for the training program, brought suit under § 703(a) of Title VII, arguing that he had been denied entry into the training program because of his race. The Supreme Court held that “Title VII’s prohibition in § [ ] 703(a) ... against racial discrimination does not condemn all private, voluntary, race-conscious affirmative action plans.” Id. at 208, 99 S.Ct. 2721. The Court did not “define in detail the line of demarcation between permissible and impermissible affirmative action plans.” Id. But the Court noted that the plan was “structured to open employment opportunities for Negroes in occupations which have been traditionally closed to them,” and that it did not “unnecessarily trammel the interests of the white employees” because it was “a temporary measure” that did not “require the discharge of white workers and their replacement with new black hirees” or “create an absolute bar to the advancement of white employees.” Id. The Court therefore held that the affirmative action plan in Weber “f[ell] within the area of discretion left by Title VII" }, { "docid": "22354010", "title": "", "text": "plan. The burden of proving its invalidity remains on the plaintiff. The assessment of the legality of the Agency Plan must be guided by our decision in Weber, supra. In that case, the Court addressed the question whether the employer violated Title VII by adopting a voluntary affirmative action plan designed to “eliminate manifest racial imbalances in traditionally segregated job categories.” Id., at 197. The respondent employee in that case challenged the employer’s denial of his application for a position in a newly established craft training program, contending that the employer’s selection process impermissibly took into account the race of the applicants. The selection process was guided by an affirmative action plan, which provided that 50% of the new trainees were to be black until the percentage of black skilled craft-workers in the employer’s plant approximated the percentage of blacks in the local labor force. Adoption of the plan had been prompted by the fact that only 5 of 273, or 1.83%, of skilled craftworkers at the plant were black, even though the work force in the area was approximately 39% black. Because of the historical exclusion of blacks from craft positions, the employer regarded its former policy of hiring trained outsiders as inadequate to redress the imbalance in its work force. We upheld the employer’s decision to select less senior black applicants over the white respondent, for we found that taking race into account was consistent with Title VII’s objective of “breaking] down old patterns of racial segregation and hierarchy.” Id., at 208. As we stated: “It would be ironic indeed if a law triggered by a Nation’s concern over centuries of racial injustice and intended to improve the lot of those who had ‘been excluded from the American dream for so long’ eonsti- tuted the first legislative prohibition of all voluntary, private, race-conscious efforts to abolish traditional patterns of racial segregation and hierarchy.” Id., at 204 (quoting remarks of Sen. Humphrey, 110 Cong. Rec. 6552 (1964)). We noted that the plan did not “unnecessarily-trammel the interests of the white employees,” since it did not require “the discharge of" } ]

[ { "docid": "14648445", "title": "", "text": "to say so. See, e. g., 46 U.S.C. § 688 (Jones Act) ; Pure Oil Company v. Suarez, supra. Furthermore, in coupling “acts of infringement” with a “place of business” to constitute the venue test of the second clause, Congress appears to have contemplated a place for trial where there would be “first-hand visual and audible knowledge of the conditions, the environment and the art itself and the testimony of the most competent witnesses.” Ruth v. Eagle-Picher Company, 225 F.2d 572, 577 (10th Cir. 1955). These ends may be served in the place of the “principal office” if managerial personnel there actually participate directly, concretely, and with some detailed attention in the acts alleged to constitute infringement. See Carolyn Chenilles, Inc. v. Ostow & Jacobs, supra, 168 F.Supp. at 897. They are not served if the principal office is at a relatively Olympian remove, from which there is little or no condescension upon the day-to-day efforts that may comprise alleged “acts of infringement.” From the papers before us, it is not possible to know with assurance the concrete facts affecting this venue problem. The burden is plaintiff’s, Phillips v. Baker, 121 F.2d 752, 756 (9th Cir. 1941), cert, denied, 314 U.S. 688, 62 S.Ct. 301, 86 L.Ed. 551 (1942); 1 Moore, Federal Practice 1326-7 (2d ed. 1964), and he has not thus far sustained it. But the facts are known peculiarly to defendant, and the demonstration as to venue should emerge as the substance of the case is developed. This appears, in short, to be a case where venue and merits are so far intertwined that it is “better to wait until trial where a full presentation of the issue can be made, rather than rule preliminarily on a motion.” Kierulff Associates v. Luria Brothers & Company, supra, 240 F.Supp. at 642. To be sure, such a course exposes plaintiff to the risk of a defeat on the venue question after trial despite a record favoring him on the merits — i. e., showing “acts of infringement” but only outside this District. The risk is avoidable, however, at plaintiff’s option;" } ]

[ { "docid": "4236119", "title": "", "text": "Once a corporation is found to be doing business here it is present for “all purposes”; “jurisdiction does not fail because the cause of action has no relation in its origin to the business transacted.” Id. at 268, 115 N.E. at 918. See also, Gelfand v. Tanner Motor Tours, Inc., 339 F.2d 317, 320 (2 Cir. 1964). With regard to parent-subsidiary relationships vis-a-vis person-am “doing business” jurisdiction, Judge Lasker has summarized the applicable principles in the following terms: New York courts have held that a parent corporation can be present in the state because of the activities of its subsidiary. However, the activities must amount to more than the mere parent-subsidiary relationship, Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 336, 45 S.Ct. 250, 69 L.Ed. 634 (1925); Simonson v. International Bank, 16 A.D.2d 55, 225 N.Y.S.2d 392, aff’d 14 N.Y.2d 281, 251 N.Y.S.2d 433, 200 N.E.2d 427 (1962). The parent may be subject to jurisdiction where the subsidiary “performs all the business” which the parent could do “were it here by its own officials.” Frummer v. Hilton Hotels International, Inc., 19 N.Y.2d 533, 537, 281 N.Y.S.2d 41, 44, 227 N.E.2d 851, 854 (1967); Gelfand v. Tanner Motor Tours, Ltd., 385 F.2d 116 (2d Cir. 1967). Additionally, where the subsidiary is “in fact, if not in name” a branch of the parent, the distinctions between the two fall and the parent is amenable to New York’s jurisdiction. Public Administrator of County of New York v. Royal Bank of Canada, 19 N.Y.2d 127, 132, 278 N.Y.S.2d 378, 382, 224 N.E.2d 877 (1967); Taca International Airlines S.A. v. Rolls-Royce of England, Ltd., 15 N.Y.2d 97, 256 N.Y.S.2d 129, 204 N.E.2d 329 (1965). Tokyo Boeki (U.S.A.), Inc. v. SS Navarino, 324 F.Supp. 361, 366 (S.D.N.Y.1971). In Sunrise Toyota, Ltd. v. Toyota Motor Co., 55 F.R.D. 519, 528 (S.D.N.Y.1972), Judge Lasker rephrased the above statement in light of the subsequent decision of the New York Court of Appeals in Delagi v. Volkswagenwerk A.G. of Wolfsburg, Germany, 29 N.Y.2d 426, 328 N.Y.S.2d 653, 278 N.E.2d 895 (1972) : As restated in Délagi, there" }, { "docid": "22850899", "title": "", "text": "same issue. Longines-Wittnauer Watch Co. v. Barnes & Rei-necke, Inc., supra at 452-455; Simonson v. International Bank, 14 N.Y.2d 281, 290, 251 N.Y.S.2d 433, 440, 200 N.E.2d 427, 432 (1964) (“CPLR § 302 has retroactive effect to the extent of embracing suits instituted after its effective date but based on previously accrued causes of action”). (3) District Court’s Determining Threshold Jurisdictional Issue at a Preliminary Hearing Was Proper This principle is so vital to the fundamental concept of the limited jurisdiction of the federal courts that no dilation is here required. We recently remanded a case to the district court for a preliminary hearing on the threshold question of whether the district court had jurisdiction under C.P.L.R. §§ 301 and 302 where the affidavits were “somewhat sketchy,” “most unimpressive” and “hardly very frank.” Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 323 (2 Cir. 1964) . See Agrashell, Inc. v. Bernard Sirotta Company, 344 F.2d 583 (2 Cir. 1965). In the instant case, the district court observed in its May 1, 1964 opinion that “the contention is made that the New York statute does not apply because Klein did not transact business within New York. This is a question of fact. * * It is not practicable to decide this question upon affidavits. A hearing will be necessary at which both parties may offer evidence on the subject.” 35 F.R.D. 216, 222-223. In its October 20,1964 opinion, the district court noted at the outset, “I shall consider only the evidence adduced at the hearing and shall disregard the allegations of the affidavits originally submitted in support of and in opposition to the motion. These allegations are made by attorneys, who obviously have no personal knowledge of the facts. It was because of the inadequacy of the affidavits in this respect that I directed that a hearing be held.” 235 F.Supp. 345, 346 n. 1. The salutary practice of determining threshold jurisdictional questions at a preliminary hearing precisely as the district court did here is so well settled as to be beyond question. Gelfand v. Tanner Motor Tours, Ltd., supra." }, { "docid": "20555817", "title": "", "text": "is Billi (Italy), which has undertaken to pay and has paid all attorneys’ fees and other expenses in connection with the New York action.” . Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). . 28 U.S.C. § 1400(b). See Schnell v. Peter Eckrich & Sons, 365 U.S. 260, 262-263, 81 S.Ct. 557, 5 L.Ed.2d 546 (1961); Fourco Glass Co. v. Transmirra Prods. Corp., 353 U.S. 222, 229, 77 S.Ct. 787, 1 L.Ed.2d 786 (1957); cf. Brunette Machine Works, Ltd. v. Kockum Indus., Inc., 406 U.S. 706, 92 S.Ct. 1936, 32 L.Ed.2d 428 (1972). . Upon argument, it appeared that a jury trial had been demanded in the Greensboro action, whereas the New York suits were nonjury. Accordingly, Bentley argued it was not feasible to consolidate for trial purposes a nonjury and a jury case. This contention dissolves, since Scott & Williams stipulated it was prepared to waive a jury trial in the Greensboro suit. In any event, whether the actions should be consolidated for single trial purposes is for the transferee court to decide upon application by interested parties. . General Tire & Rubber Co. v. Watkins, 373 F.2d 361, 362 (4th Cir.), cert. denied, sub. nom. Firestone Tire & Rubber Co. v. General Tire & Rubber Co., 386 U.S. 960, 87 S.Ct. 1031, 18 L.Ed.2d 109 (1967). See generally Schneider v. Sears, 265 F.Supp. 257 (S.D.N.Y.1967). . See, e. g., In re Suess Patent Infringement Litigation, 331 F.Supp. 549 (J.P.M.L.1971); In re Butterfield Patent Infringement, 328 F.Supp. 513 (J.P.M.L. 1970) ; In re Willingham Patent Litigation, 322 F.Supp. 1019 (J.P.M.L.1971). . See Unico Indus. Corp. v. S.S. Andros City, 323 F.Supp. 896, 897 n. 6 (S.D.N.Y.1971) , and cases cited therein. . See id. at 897 n. 2 and cases cited therein." }, { "docid": "8490416", "title": "", "text": "S.Ct. 200, 1 L.Ed.2d 178 (1956); Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314-315, 70 S.Ct. 652, 94 L.Ed. 865 (1950). . That actual receipt of notice is a fact of significance, see Rovinski v. Rowe, 131 F.2d 687, 689 (6th Cir. 1942); Frasca v. Eubank, 24 F.R.D. 268, 270 (E.D.Pa. 1959) (dictum). See also, Milliken v. Meyer, 311 U.S. 457, 463, 61 S.Ct. 339, 85 L.Ed. 278 (1940); SEC v. Briggs, 234 F.Supp. 618, 623 (N.D. Ohio 1964). Cf. Hanna v. Plumer, 380 U.S. 460, 463 n. 1, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) (dictum). . See Kurland v. Chernobil, 260 N.Y. 254, 257, 183 N.E. 380 (1932). . See McLaughlin, 1964 Supplementary Practice Commentary . to CPLR § 302, in McKinney’s Consolidated Laws of New York Annotated (1965 pocket part). . Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 452, 261 N.Y.S.2d 8, 14, 209 N.E.2d 68, 72 (1965). . Ibid; 1 Weinstein, Korn & Miller, New York Civil Practice If 302.01 (1963); Note on Legislative Studies and Reports to CPLR § 302, in McKinney’s Consolidated Laws of New York Annotated (1963). . Cf. Kurland v. Chernobil, 260 N.Y. 254, 257, 183 N.E. 380 (1932). . See Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 454 n. 4, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965). See also, Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583, 586-587 (2d Cir. 1965); Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 320 (2d Cir. 1964); 1 Weinstein, Korn & Miller, New York Civil Practice ¶ 302.01 (1963). . See People ex rel. Hoagland v. Streeper, 12 Ill.2d 204, 145 N.E.2d 625, 630 (1957); Tebedo v. Nye, 45 Misc.2d 222, 256 N.Y.S.2d 235 (Sup.Ct.1965); Dubin v. City of Philadelphia, 34 Pa.Dist. & Co. R. 61 (C.P.1938); Goodrich, Conflict of Laws 118 (4th ed. 1964). . See N.Y. CPLR § 313. . See O’Connor v. Wells, 43 Misc.2d 1075, 252 N.Y.S.2d 861, 863 (Sup.Ct.1964). . Tebedo v. Nye, 45 Misc.2d 222, 256 N.Y.S.2d 235, 236 (Sup.Ct.1965). Cf. Hempstead Medical Arts Co." }, { "docid": "843622", "title": "", "text": "reasonably prudent person under the circumstances — under either a negligence or gross negligence standard- — would doubtless lead to destructive self-censorship. For reasonable people might differ about the amount of time, money, and manpower necessary to complete an adequate investigation, and these differences could become either the bases for a host of lawsuits or for decisions not to publish. Insofar as public figures are concerned, the Constitution accords breathing space to publishers in order to avoid these results and, instead, to encourage publishers not to refrain from printing criticism unless they know it is false or have serious doubts about the truth of it. IV. APPLICATION OF THE CONSTITUTIONAL STANDARD The court of appeals for this jurisdiction has observed that summary procedures are especially appropriate in the First Amendment area, Washington Post Company v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965, 968 (1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967). For the New York Times principle is designed in part to avoid the “chilling effect” on freedom of speech and press that inheres in the threat of being put to the defense of a lawsuit. Id.; see also Dombrowski v. Pfister, 380 U.S. 479, 487, 88 S.Ct. 1116, 14 L.Ed.2d 22 (1965). Accordingly, defendant’s motion should be granted if plaintiff is unable to establish clearly and convincingly that defendants acted with actual malice. See, e.g., Miller v. New Syndicate Co., 445 F.2d 356 (2d Cir. 1971); Bon Air Hotel, Inc. v. Time, Inc., 426 F.2d 858 (5th Cir. 1970); Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965 (1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967). The Supreme Court has dealt with the concept of actual malice on a number of occasions, and the concept is now well-defined. Thus, actual malice is quite different from common-law malice, which is generally required under state tort law to support an award of punitive damages and which focuses on the defendant’s attitude toward the plaintiff. Actual malice focuses instead on the “defendant’s attitude . toward the truth or falsity of" }, { "docid": "13341278", "title": "", "text": "Mr. Jennings returns again to this Court, advancing the same arguments and seeking the same relief. Such a tautological history gives rise to the inclination to summarily dismiss Mr. Jennings’ request under the doctrine of law of the case. Indeed, where litigants have once battled for the court’s decision, they should neither be required, nor without good reason permitted, to battle for it again. Zdanok v. Glidden Co., Durkee Famous Food Div., 327 F.2d 944, 953 (2d Cir.), cert. denied, 377 U.S. 934, 84 S.Ct. 1338, 12 L.Ed.2d 298 (1964). See Messinger v. Anderson, 225 U.S. 436, 444, 32 S.Ct. 739, 56 L.Ed.2d 1152 (1912); Higgins v. Calif. Prune & Apricot Grower, Inc., 3 F.2d 896, 898 (2d Cir. 1924); Perma Research & Development Co. v. Singer Co., 308 F.Supp. 743, 746 (S.D.N.Y.1970); Ross Products, Inc. v. New York Merchandise Co., 242 F.Supp. 878, 879 (S.D.N.Y.1965). Nonetheless, in order to clarify any misunderstanding which may exist regarding the Court’s prior rulings, and to prevent Mr. Jennings from continuing in his efforts to shadow box in this Court, the merits of Mr. Jennings’ motion will be discussed for the last time. Mr. Jennings’ arguments flow from the proposition that Mr. O’Rourke’s alleged lack of capacity deprives this Court of subject matter jurisdiction. While earlier cases provide a blush of validity to this theory, see, e. g., Clemente Engineering Co. v. De-Liso Construction Co., 53 F.Supp. 434, 435 (D.Conn.1944); Pasos v. Eastern S. S. Co., 9 F.R.D. 279, 281 (D.Del.1949), later cases have expressly rejected the notion that lack of capacity rises to the level of a subject matter jurisdictional defect, see, e. g., Summers v. Interstate Tractor & Equipment Co., 466 F.2d 42, 50 (9th Cir. 1972); Brown v. Keller, 274 F.2d 779, 780 (6th Cir.), cert. denied, 363 U.S. 828, 80 S.Ct. 1599, 4 L.Ed.2d 1523 (1960). Further inquiry into this issue reveals the Supreme Court has indicated acceptance of the non-jurisdictional view. In Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960), the Court held that a case could not be transferred to a district" }, { "docid": "1888611", "title": "", "text": "Inc. v. United States Steel Corp., 322 F.2d 656 (9 Cir. 1963); United States v. Continental Can Co., D.C., 217 F.Supp. 761, 767 (1963); United States v. Ingersoll-Rand Co., et al., 218 F.Supp. 530 (W.D.Penna. 1963), aff’d 320 F.2d 509 (3 Cir. 1963); Gottesman v. General Motors Corp., 221 F.Supp. 488 (S.D.N.Y.1963). . Section 16, 15 U.S.C. § 26, reads in pertinent part: Any person, firm, corporation, or association shall be entitled to sue for and have injunctive relief, in any court of the United States having jurisdiction over the parties, against threatened loss or damage by a violation of the antitrust laws * * *. . See Calnetics Corp. v. Volkswagen of America, 348 F.Supp. 606, 616 (C.D.Cal.1972); Bay Guardian Co. v. Chronicle Publishing Co., 340 F.Supp. 76, 81 (N.D.Cal.1972); Isidor Weinstein Inv. Co. v. Hearst Corp., 310 F.Supp. 390, 391 (N.D.Cal. 1970); Metric Hosiery Co. v. Spartans Indus. Inc., 50 F.R.D. 50, 52 (S.D.N.Y.1970); Kirihara v. Bendix Corp., 306 F.Supp. 72, 80-88 (D.Haw.1969); Metropolitan Liquor Co. v. Heublein, Inc., 305 F.Supp. 946, 948 (E.D.Wis.1969); Western Geophysical Co. v. Bolt Associates, Inc., 305 F.Supp. 1251, 1254 (D.Conn.1969); Sam S. Goldstein Indus., Inc. v. Botany Indus., Inc., 301 F.Supp. 728, 734-735 (S.D.N.Y.1969); Julius M. Ames Co. v. Bostitch, Inc., 240 F.Supp. 521, 525-526 (S.D.N.Y. 1965); Rayco Mfg. Co. v. Dunn, 234 F.Supp. 593, 597 (N.D.Ill.1964); cf. Blaski v. Inland Steel Co., 271 F.2d 853, 855 (7th Cir. 1959); Bender v. Hearst Corp., 263 F.2d 360, 370 (2d Cir. 1959). Contra, Isidor Weinstein Inv. Co. v. Hearst Corp., 303 F.Supp. 646 (N.D.Cal.1969), rev’d, 310 F.Supp. 390 (N.D.Cal.1970); Highland Supply Co. v. Reynolds Metal Co., 245 F.Supp. 510 (E.D.Mo. 1965); Bailey’s Bakery, Ltd. v. Continental Baking Co., 235 F.Supp. 705 (D.Haw.1964), overruled in Kirihara v. Bendix Corp., supra. . See discussion in Kirihara v. Bendix Corp., 306 F.Supp. 72, 85-86 (D.Haw.1969). . See F.T.C. v. Procter & Gamble Co., 386 U.S. 568, 577, 87 S.Ct. 1224, 18 L.Ed.2d 303 (1967)." }, { "docid": "11652551", "title": "", "text": "De Nigris Associates, Inc. v. Pacific Air Transport Int’l, Inc., 38 A.D.2d 363, 329 N.Y.S.2d 939 (1st Dep’t 1972) ; Elman v. Belson, 32 A.D.2d 422, 302 N.Y.S.2d 961, 964 (2d Dep’t 1969). . See text following note 2 supra. . In addition to the New York cases already cited, see Samson Cordage Works v. Wellington Puritan Mills, Inc., 303 F.Supp. 155 (D.R.I.1969) ; Denis v. Perfect Parts, Inc., 142 F.Supp. 259, 260-61 (D.Mass.1956). . See R.F.D. Group Ltd. v. Rubber Fabricators, Inc., 323 F.Supp. 521, 526-27 (S.D.N.Y.1971). . See Dolly Toy Co. v. Bancroft-Rellim Corp., 97 F.Supp. 531, 536 (S.D.N.Y.1951). See also Droke House Publishers, Inc. v. Aladdin Distributing Corp., 352 F.Supp. 1062, 1065 (N.D.Ga.1972) ; Fooshee v. Interstate Vending Co., 234 F.Supp. 44, 48 (D.Kan.1964) ; Gauvreau v. Warner Bros. Pictures, Inc., 178 F.Supp. 510 (S.D.N.Y.1958) ; Geo-Physical Maps, Inc. v. Toycraft Corp., 162 F.Supp. 141, 146-47 (S.D.N.Y.1958) ; Backer v. Gonder Ceramic Arts, Inc., 90 F.Supp. 737 (S.D.N.Y.1950) ; McDevitt v. Dorsey, 67 F.Supp. 818 (N.D.Ohio, E.D.1946) ; cf. People’s Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 84, 38 S.Ct. 233, 62 L.Ed. 587 (1918). . See Hoffman v. Blaski, 363 U.S. 335, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960). . Robert Stigwood Group Ltd. v. Sperber, 457 F.2d 50, 55 (2d Cir. 1972) ; Uneeda Doll Co. v. Goldfarb Novelty Co., 373 F.2d 851, 852 n. 1 (2d Cir.), cert. dismissed, 389 U.S. 801, 88 S.Ct. 9, 19 L.Ed.2d 56 (1967) ; Joshua Meier Co. v. Albany Novelty Mfg. Co., 236 F.2d 144, 147 (2d Cir. 1956) ; Rushton v. Vitale, 218 F.2d 434, 436 (2d Cir. 1955) ; American Code Co. v. Bensinger, 282 F. 829, 935 (2d Cir. 1922). . Herbert Rosenthal Jewelry Corp. v. Kalpakian, 446 F.2d 738, 741 (9th Cir. 1971) ; Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966); Joshua Meier Co. v. Albany Novelty Co., 236 F.2d at 147. . Herbert Rosenthal Jewelry Corp. v. Zale Corp., 323 F.Supp. 1234, 1238 (S.D.N.Y.1971). . Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 23 S.Ct." }, { "docid": "17929234", "title": "", "text": "506-507, 67 S.Ct. 839, 842, 91 L.Ed. 1055, 1061-1062 (1947); Foster-Milburn Co. v. Knight, 181 F.2d 949, 952-953 (2d Cir. 1950). . Van Dusen v. Barrack, 376 U.S. 612, 619— 620, 84 S.Ct. 805, 811, 11 L.Ed.2d 945, 951-952 (1964); Hoffman v. Blaski, 363 U.S. 335, 342-343, 80 S.Ct. 1084, 1089, 4 L.Ed.2d 1254, 1261, 1262 (1960); Illinois Scientific Devs., Inc. v. Sirica, 133 U.S.App.D.C. 249, 250, 410 F.2d 237, 238 (1968). Where a case involves more than one cause of action, venue must be proper as to each claim. Jones v. Bales, 58 F.R.D. 453, 458 (N.D.Ga.1972), aff’d, 480 F.2d 805 (5th Cir. 1973); Locke Mfg. Co. v. Sabel, 244 F.Supp. 829, 830-831 (W.D.Ky.1965); 3A J. Moore, Federal Practice ¶ 18.07 [l.-l], at 1906 (2d ed. 1974). This restriction may be undesirable where the parties and proofs for all causes of action are identical. See Laffey v. Northwest Airlines, Inc., 321 F.Supp. 1041 (D.D.C.1971). In this case, however, the parties differ by counts of the complaint, see text supra at notes 6-8, and proof of a cause of action against the individual defendants is not the same as proof of a cause of action against the United States. . Van Dusen v. Barrack, supra note 12, 376 U.S. at 619-620, 84 S.Ct. at 811, 11 L.Ed.2d at 951-952; Hoffman v. Blaski, supra note 12, 363 U.S. at 343, 80 S.Ct. at 1089, 4 L.Ed.2d at 1262; Foster-Milburn Co. v. Knight, supra note 11, 181 F.2d at 952; Shutte v. Armco Steel Corp., 431 F.2d 22, 24 (3d Cir. 1970), cert. denied, 401 U.S. 910, 91 S.Ct. 871, 27 L.Ed.2d 808 (1971); Cessna Aircraft Co. v. Brown, 348 F.2d 689, 692 (10th Cir. 1965). Even if some, but not all, of the defendants are amenable to service of process of the transferee court, the case cannot be transferred under § 1404(a). Shutte v. Armco Steel Corp., supra; Ferri v. United Aircraft Corp., 357 F.Supp. 814, 816 (D.Conn.1973). . 28 U.S.C. §§ 1346(b), 1402(b) (1970). . As the complaint reveals, the gravamen of petitioners’ action is not the events in Montgomery," }, { "docid": "18451894", "title": "", "text": "Cir. 1970), and International Bus. Coordinators, Inc. v. Aamco Automatic Transmissions, Inc., 305 F.Supp. 361 (S.D.N.Y.1969), as well as two copyright cases which antedate the general use of “long-arm” statutes, Geo-Physical Maps, Inc. v. Toycraft Corp., 162 F.Supp. 141 (S.D.N.Y.1958), and McDevitt v. Dorsey, 67 F.Supp. 818 (N.D.Ohio 1946). Whether these holdings are correct, in view of the fact that there is no apparent reason to differentiate between individuals and corporations, need not be decided. Cf. Freeman v. Bee Machine Co., 319 U.S. 448, 454, 63 S.Ct. 1146, 1149, 87 L.Ed. 1509 (1943) (“ ‘found’ in the venue sense does not necessarily mean physical presence”). . Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962); Taylor v. Love, 415 F.2d 1118 (6th Cir. 1969), cert. denied, 397 U.S. 1023, 90 S.Ct. 1257, 25 L.Ed.2d 533 (1970); Mayo Clinic v. Kaiser, 383 F.2d 653 (8th Cir. 1967); Dubin v. United States, 380 F.2d 813, 814 n.2 (5th Cir. 1967); United States v. Berkowitz, 328 F.2d 358 (3d Cir.), cert. denied, 379 U.S. 821, 85 S.Ct. 42, 13 L.Ed.2d 32 (1964); Sales Arm, Inc. v. Automobile Club of Southern Calif., 402 F.Supp. 763, 767-68 (S.D.N.Y.1975); cf. Berkshire Int’l Corp. v. Alba-Waldensian, Inc., 352 F.Supp. 831, 832-33 (S.D.N.Y.1972). . 28 U.S.C. §§ 1404(a), 1406(a). . See Schneider v. Sears, 265 F.Supp. 257 (S.D.N.Y.1967); Oil & Gas Ventures—First 1958 Fund, Ltd. v. Kung, 250 F.Supp. 744, 754 (S.D.N.Y.1966). . Since the defendant resides in the Central District of California, there is no question that the action might have been brought there. See 28 U.S.C. § 1400(a), n.3 supra. . See Xerox Corp. v. Litton Indus., Inc., 353 F.Supp. 412, 415-16 (S.D.N.Y.1973); Unico Indus. Corp. v. S.S. Andros City, 323 F.Supp. 896, 897 (S.D.N.Y.1971); Saraf v. Chatham Carpet Mills, Inc., 275 F.Supp. 951, 952 (S.D.N.Y.1967). . Xerox Corp. v. Litton Indus., Inc., 353 F.Supp. 412, 416 (S.D.N.Y.1973); Faigenbaum Mach., Inc. v. Scott & Williams, Inc., 344 F.Supp. 1267, 1271 (S.D.N.Y.1972); Unico Indus. Corp. v. S.S. Andros City, 323 F.Supp. 896, 897 & n.6 (S.D.N.Y.1971); cf. Norwood v. Kirkpatrick, 349 U.S." }, { "docid": "23441782", "title": "", "text": "properly the subject of interrogatories under Rule 33 or other available discovery procedures. Discovery is not the purpose of Rule 12(e). The motion is denied. . 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965). . Id. at 452, 458, 467, 261 N.Y.S.2d 8, 209 N.E.2d 68. See also, United States v. Montreal Trust Co., 358 F.2d 239 (2d Cir. 1966). . Hanson v. Denckla, 357 U.S. 235, 253, 78 S.Ct. 1228, 1240, 2 L.Ed.2d 1283 (1958); Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 323 (2d Cir. 1964). See also, Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 445, 72 S.Ct. 413, 96 L.Ed. 485 (1952). . Cf. Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1, 15 L.Ed.2d 39, 41 (Goldberg, Circuit Justice, 1965). Upon argument of this motion defense counsel stated the defendant’s failure to file an affidavit controverting the allegations of the complaint and the supporting affidavits was to avoid a hearing on the jurisdictional attack. SM 73. . Cf. United States v. Montreal Trust Co., 358 F.2d 239 (2d Cir. 1966). . See Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1, 15 L.Ed.2d 39 (Goldberg, Circuit Justice, 1965) ; United States v. Montreal Trust Co., Docket No. 29607, 2d Cir., January 6, 1966, 358 F.2d 239; Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965); Lewis v. American Archives Ass’n, 43 Misc.2d 721, 252 N.Y.S.2d 217, 219 (Sup.Ct.1964); Iroquois Gas Corp. v. Collins, 42 Misc.2d 632, 248 N.Y.S.2d 494, 497 (Sup.Ct.1964), aff’d, 23 A.D.2d 823, 258 N.Y.S.2d 376 (4th Dep’t 1965). Cf. Bryant v. Finnish Nat’l Airline, 15 N.Y.2d 426, 260 N.Y.S.2d 625, 208 N.E.2d 439 (1965). . Cf. Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1, 15 L.Ed.2d 39, 44 (Goldberg, Circuit Justice, 1965); Johnson v. Equitable Life Assur. Soc’y, 22 A.D.2d 138, 254 N.Y.S.2d 258 (1st Dep’t 1964). . See Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1, 15 L.Ed.2d 39 (Goldberg, Circuit Justice, 1965); Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 320 (2d Cir. 1964); Simonson v. International Bank," }, { "docid": "22236240", "title": "", "text": "922, 89 S.Ct. 1776, 23 L.Ed.2d 239 (1969) ; United Medical Laboratories, Inc. v. Columbia Broadcasting System, Inc., 404 F.2d 706 (9 Cir. 1968), cert. den., 394 U.S. 921, 89 S.Ct. 1197, 22 L.Ed.2d 454 (1969) ; Hurley v. Northwest Publications, Inc., 398 F.2d 346 (8 Cir. 1968), aff’g 273 F.Supp. 967 (D.Minn.1967) ; Walker v. Pulitzer Publishing Co., 394 F.2d 800 (8 Cir. 1968) ; Thompson v. Evening Star Newspaper Co., 129 U.S. App.D.C. 299, 394 F.2d 774 (1968) ; Washington Post Co. v. Keogh, 125 U.S. App.D.C. 32, 365 F.2d 965 (1966), cert. den., 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967) ; Cerrito v. Time, Inc., 302 F.Supp. 1071 (N.D.Cal.1969) ; Sellers v. Time, Inc., 299 F.Supp. 582 (E.D.Pa.1969), aff’d, 423 F.2d 887 (3 Cir., 1970). . Wasserman v. Time, Inc., 424 F.2d 920 (D.C.Cir., 1970) ; Goldwater v. Ginzburg, 414 F.2d 324 (2 Cir. 1969), aff’g 261 F.Supp. 784 (8.D.N.Y.1966) ; Ragane v. Time, Inc., 302 F.Supp. 1005 (M.D.FIa. 1969), appeal filed (5 Cir.) ; cf. Pape v. Time, Inc., 419 F.2d 980 (7 Cir. 1969), rev’g 294 F.Supp. 1087 (N.D.Ill. 1969) (evidence of actual malice sufficient to go to jury) ; Stearn v. MacLeanHunter, Ltd., 46 F.R..D. 76 (S.D.N.Y. 1969) (complaint sufficient to state cause of action). . United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 8 L.Ed.2d 176 (1962) ; Goldwater v. Ginzburg, supra, 414 F.2d at 337; Time, Inc. v. McLaney, supra, 406 F.2d, at 571-572. . “A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.” Towne v. Eisner, 1918, 245 U.S. 418, 425, 38 S.Ct. 158, 159, 62 L.Ed. 372. . We would be confronted with an entirely different situation if a true photograph of the hotel had been used with additional pictures of wooden braces and trash superimposed on the photograph. . The decisions in Wasserman v. Time, Inc., 424 F.2d 920 (D.C.Cir., 1970), and Ragano v." }, { "docid": "8280612", "title": "", "text": "Corp., supra, 287 F.2d at 495; Restatement of Torts, §§ 729, 730 and 731 (1939). . Chandon Champagne Corp. v. San Marino Wine Corp., 335 F.2d 531 (2d Cir. 1964). . Defendant’s Exhibits (“DX-”) GD, GF; plaintiff’s post-trial brief, p. 4. . Trial transcript (“Tr.-), p. 209. . See, e.g., Communications Satellite Corp. v. Comcet, Inc., 429 F.2d 1245 (4th Cir.), cert. denied, 400 U.S. 942, 91 S.Ct. 240, 27 L.Ed.2d 245 (1970) ; Arrow Distilleries, Inc. v. Globe Brewing Co., 117 F.2d 347, 351 (4th Cir. 1941) ; France Milling Co. v. Washburn-Crosby Co., 7 F.2d 304 (2d Cir.), cert. denied, 268 U.S. 706, 45 S.Ct. 640, 69 L.Ed. 1168 (1925). . Miss Universe, Inc. v. Patricelli, supra, 408 F.2d at 509. . Miles Shoes, Inc. v. R. H. Macy & Co., 199 F.2d 602, 603 (2d Cir. 1952). . Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609 (7th Cir. 1965) ; Harold F. Ritchie, Inc. v. Chesebrough-Pond’s, Inc., 281 F.2d 755, 760 (2d Cir. 1960) ; Chester Barrie, Ltd. v. The Chester Laurie, Ltd., 189 F.Supp. 98 (S.D.N.Y.1960). . Tr. 201-02. . Comsky deposition, pp. 5 and 7. . Sears, Roebuck & Co. v. Allstate Driving School, Inc., 301 F.Supp. 4, 13 (E.D.N.Y. 1969) ; Restatement of Torts § 731 (1939). . DX CP. . Tr. 133. . Kiki Undies Corp. v. Promenade Hosiery Mills, Inc., supra. . See Developments in the Law, Trademarks and Unfair Competition, 68 Harv.L. Rev. 814, at 817 (1955). . See Syntex Laboratories, Inc. v. Norwich Pharmacal Co., supra. . I.T.S. Industria Tessuti Speciali v. Aerfab Corp., 280 F.Supp. 581 (S.D.N.Y.1967). . Syntex Laboratories, Inc. v. Norwich Pharmacal Co., supra, 315 F.Supp. 45, 52 (S.D.N.Y.1970). . Electronic Communications, Inc. v. Electronic Components for Industry Co., 443 F.2d 487 (8th Cir.), cert. denied, 404 U.S. 833, 92 S.Ct. 80, 30 L.Ed.2d 63 (1971) ; Mr. Travel, Inc. v. V.I.P. Travel Service, Inc., 268 F.Supp. 958 (N.D.Ill.1966), aff’d, 385 F.2d 420 (7th Cir. 1967). . David Sherman Corp. v. Heublein, Inc., 340 (8th Cir. 1965). . David Sherman Corp. v. Heublein, Inc., supra." }, { "docid": "18449027", "title": "", "text": "here to determine if there is any genuine dispute because of the danger that speech may be chilled by the mere fact of litigation. Guam Fed. of Teachers, Local 1581, A. F. T. v. Ysrael, 492 F.2d 438 (9th Cir.), cert. denied, 419 U.S. 872, 95 S.Ct. 132, 42 L.Ed.2d 111 (1974); Oliver v. Village Voice, Inc., 417 F.Supp. 235, 237 (S.D.N.Y.1976). The court must make a threshold determination, before trial, whether there has been a showing of actual malice. Bon Air Hotel v. Time, Inc., 426 F.2d 858, 864 (5th Cir. 1970); Wasserman v. Time, Inc., 138 U.S.App.D.C. 7, 424 F.2d 920, 922 (1970) (Wright, J. concurring), cert. denied, 398 U.S. 340, 90 S.Ct. 1844, 26 L.Ed.2d 273 (1970). “[I]n making this determination, the granting of summary judgment may well be the ‘rule’ rather than the ‘exception’.” Oliver v. Village Voice, Inc., 417 F.Supp. 235, 237 (S.D.N.Y.1976); Guitar v. Westinghouse Elec. Corp., 396 F.Supp. 1042, 1053 (S.D.N.Y.1975), aff’d, 538 F.2d 309 (2d Cir. 1976); see also, Perry v. Columbia Broadcasting System, Inc., 499 F.2d 797 (7th Cir.), cert. denied, 419 U.S. 883, 95 S.Ct. 150, 42 L.Ed.2d 123 (1974); Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973); Washington Post Co. v. Keogh, 125 U.S.App.D.C. 32, 365 F.2d 965, 968 (1966), cert. denied, 385 U.S. 1011, 87 S.Ct. 708, 17 L.Ed.2d 548 (1967). But even if for the purpose of this suit it is found that Dr. Hutchinson is a private person so that First Amendment protections do not extend to Senator Proxmire and his administrative assistants, relevant state law dictates the grant of summary judgment. In a diversity action, under the doctrine of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), a federal court must apply the conflict of laws doctrine of the state in which it sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941). Thus, sitting in Wisconsin where the suit is filed, this court must look" }, { "docid": "22850930", "title": "", "text": "relatives and friends may have been income of Klein for tax purposes. The majority, seemingly unconsciously, has fallen for the government’s bait of “a somewhat more sophisticated view of the facts of economic life” and has equated potential tax liability with amenability to service of process. But even if, as the government claims, Klein may have incurred substantive tax liability on a theory of constructive receipt or individual enjoyment of income, it does not follow that by virtue thereof he transacted any business, in the sense of engaging in some purposeful activity, within the state, as required by § 302. The distinction is a fine one, but it is vital to a constitutional assertion of personal jurisdiction over a non-domiciliary in a federal tax case. For these reasons I am constrained to conclude that the majority’s direction to the district court to assert personal jurisdiction pursuant to § 302 over Montreal Trust violates the due process requirements of the United States Constitution, U. S. Const. amend. V (due process clause), and renders § 302 unconstitutional as applied. Hanson v. Denckla, 357 U.S. 235, 251, 253, 78 S.Ct. 1228, 2 L.Ed. 2d 1283 (1958); Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); International Shoe Co. v. Washington, 326 U.S. 310, 317-319, 66 S.Ct. 154, 90 L.Ed. 95 (1945); cf. Agrashell, Inc. v. Bernard Sirotta Company, 344 F.2d 583, 586-590 (2 Cir. 1965), and concurring opinion of Chief Judge Lumbard, id. at 590; Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 319-323 (2 Cir. 1964); Arrowsmith v. United Press International, 320 F.2d 219, 233-234 (2 Cir. 1963) (en banc); Deveny v. Rheem Manufacturing Co., 319 F.2d 124, 126-128 (2 Cir. 1963); Blount v. Peerless Chemicals (P. R.) Inc., 316 F.2d 695, 696-701 (2 Cir. 1963), cert. denied, Colbert v. Peerless Chemicals, 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963); Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508, 516-522 (2 Cir. 1960) (concurring opinion of Judge Friendly); MacInnes v. Fontainebleau Hotel Corp., 257 F.2d 832, 834-835 (2 Cir. 1958); Gkiafis v. Steamship Yiosonas," }, { "docid": "23441783", "title": "", "text": "(2d Cir. 1966). . See Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1, 15 L.Ed.2d 39 (Goldberg, Circuit Justice, 1965) ; United States v. Montreal Trust Co., Docket No. 29607, 2d Cir., January 6, 1966, 358 F.2d 239; Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965); Lewis v. American Archives Ass’n, 43 Misc.2d 721, 252 N.Y.S.2d 217, 219 (Sup.Ct.1964); Iroquois Gas Corp. v. Collins, 42 Misc.2d 632, 248 N.Y.S.2d 494, 497 (Sup.Ct.1964), aff’d, 23 A.D.2d 823, 258 N.Y.S.2d 376 (4th Dep’t 1965). Cf. Bryant v. Finnish Nat’l Airline, 15 N.Y.2d 426, 260 N.Y.S.2d 625, 208 N.E.2d 439 (1965). . Cf. Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1, 15 L.Ed.2d 39, 44 (Goldberg, Circuit Justice, 1965); Johnson v. Equitable Life Assur. Soc’y, 22 A.D.2d 138, 254 N.Y.S.2d 258 (1st Dep’t 1964). . See Rosenblatt v. American Cyanamid Co., 86 S.Ct. 1, 15 L.Ed.2d 39 (Goldberg, Circuit Justice, 1965); Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 320 (2d Cir. 1964); Simonson v. International Bank, 14 N.Y.2d 281, 288, 251 N.Y.S.2d 433, 200 N.E.2d 427 (1964). . See Southern Pac. Co. v. Bogert, 250 U.S. 483, 491-92, 39 S.Ct. 533, 63 L.Ed. 1099 (1919); Gratz v. Claughton, 187 F.2d 46, 49-50 (2d Cir.), cert. denied, 341 U.S. 920, 71 S.Ct. 741, 95 L.Ed. 1353 (1950). Cf. Blau v. Mission Corp., 212 F.2d 77, 80 (2d Cir.), cert. denied, 347 U.S. 1016, 74 S.Ct. 872, 98 L.Ed. 1138 (1954). . Austrian v. Williams, 103 F.Supp. 64, 73 (S.D.N.Y.), rev’d on other grounds, 198 F.2d 697 (2d Cir.), cert. denied, 344 U.S. 909, 73 S.Ct. 328, 97 L.Ed. 701 (1952). . Southern Pac. Co. v. Bogert, 250 U.S. 483, 492, 39 S.Ct. 533, 63 L.Ed. 1099 (1919). . Jackson v. Smith, 254 U.S. 586, 589, 41 S.Ct. 200, 65 L.Ed. 418 (1921); Bankers Life & Cas. Co. v. Kirtley, 338 F.2d 1006, 1013 (8th Cir. 1964); Sexton v. Sword S.S. Line, Inc., 118 F.2d 708, 711 (2d Cir. 1941); Irving Trust Co. v. Deutsch, 73 F.2d 121, 125 (2d Cir. 1934), cert." }, { "docid": "22352405", "title": "", "text": "cert. denied, 346 U.S. 832, 74 S.Ct. 33, 98 L.Ed. 355 (1953); Stella v. Kaiser, 82 F.Supp. 301, 309-310 (S.D.N.Y.1948); Securities & Exchange Commission v. Bennett, 62 F.Supp. 609, 610 (S.D.N.Y.1945). . Compare Axe-Houghton Fund A, Inc. v. Atlantic Research Corp., 227 F.Supp. 521, 523 (S.D.N.Y.1964). . See 11 U.S.C. §-511. . Norwood v. Kirkpatrick, 349 U.S. 29, 32, 75 S.Ct. 544, 99 L.Ed. 789 (1955); A. Olinick & Sons v. Dempster Bros., 365 F.2d 439, 444-445 (2d. Cir. 1966); Oil & Gas Ventures—First 1958 Fund, Ltd. v. Kung, 250 F.Supp. 744, 754 (S.D.N.Y. 1966). . Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 524, 67 S.Ct. 828, 832, 91 L.Ed. 1067 (1947); Freiman v. Texas Gulf Sulphur Co., 38 F.R.D. 336, 339 (N.D.Ill.1965); Josephson v. McGuire, 121 F.Supp. 83, 84-85 (D.Mass.1954), mandamus dismissed, 218 F.2d 174 (1st Cir. 1954). . A plaintiff in a representative action may have a more direct pecuniary interest than in a derivative suit, and indeed might even be the dominant shareholder. Cf. Altman v. Central of Georgia Ry., 363 F.2d 284 (D.C.Cir.), cert. denied, 385 U.S. 920, 87 S.Ct. 231, 17 L.Ed.2d 144 (1966), reversing, 254 F.Supp. 167 (D.D.C.1965). But compare Freiman v. Texas Gulf Sulphur Co., 38 F.R.D. 336, 339 (N.D.Ill.1965). . A majority of Westec’s stockholders reside in Texas. . Compare Levenson v. Little, 81 F.Supp. 513 (S.D.N.Y.1949) (motion made after action pending one year); Brainard v. Atchison, T. & S. F. Ry., 81 F.Supp. 211 (N.D.Ill.1948) (motion made one week before trial). . Freiman v. Texas Gulf Sulphur Co., 38 F.R.D. 336 (N.D.Ill.1965); Axe-Houghton Fund A, Inc. v. Atlantic Research Corp., 227 F.Supp. 521, 523 (S.D.N.Y.1964); Rodgers v. Northwest Airlines, Inc., 202 F.Supp. 309, 312 (S.D.N.Y.1962); Cressman v. United Air Lines, 158 F.Supp. 404, 407 (S.D.N.Y.1958). . See Rule 42(a), Fed.R.Civ.P.; Hawkins v. General Controls Corp., 225 F.Supp. 971, 972 (S.D.N.Y.1964); Winsor v. United Air Lines, 153 F.Supp. 244, 247 (S.D.N.Y.1957). Cf. Weiss v. Doyle, 178 F.Supp. 566 (S.D.N.Y.1959). . Parsons v. Chesapeake & O. Ry., 375 U.S. 71, 73, 84 S.Ct. 185, 71 L.Ed.2d 137 (1963). Accord, A. Olinick" }, { "docid": "844357", "title": "", "text": "the interests of justice do not favor a transfer to that state. Accordingly, defendants’ motions to transfer these cases to the Eastern District of Washington are denied. So ordered. . Holders of “long” positions are those obligated to buy potatoes in the amounts specified in the contracts. . Holders of “short” positions are those obligated to deliver potatoes in the amounts specified in the contracts, unless they offset by purchasing “long” an equivalent number of May futures contracts. . See Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 508-09, 67 S.Ct. 839, 91 L.Ed. 1055 (1947); Henn Associates, Ltd. v. Schiavone Const. Co., 401 F.Supp. 494, 495 (E.D.N.Y.1975); Pesin v. Goldman, Sachs & Co., 397 F.Supp. 392, 393-94 (S.D.N.Y.1975); Scheinbart v. Certain-Teed Products Corp., 367 F.Supp. 707, 709 (S.D.N.Y.1973). . See Allied Int’l Products, Ltd. v. Textron Indus., Inc., 382 F.Supp. 210, 212 (S.D.N.Y.1974); Scheinbart v. Certain-Teed Products Corp., supra, 367 F.Supp. at 707-08. . See Wyndham Associates v. Bintliff, 398 F.2d 614, 619 (2d Cir.), cert. denied, 393 U.S. 977, 89 S.Ct. 444, 21 L.Ed.2d 438 (1968); Pesin v. Goldman, Sachs & Co., supra, 397 F.Supp. at 393; Berger v. Winer Sportswear, Inc., 394 F.Supp. 1110, 1119 (S.D.N.Y.1975). . See American Home Assur. Co. v. Insular Underwriters Corp., 327 F.Supp. 717, 719 (S.D.N.Y.1971). . See Riso Kagaku Corp. v. A. B. Dick Co., 300 F.Supp. 1007, 1010 (S.D.N.Y.1969); Jenkins v. Wilson Freight Forwarding Co., 104 F.Supp. 422, 424 (S.D.N.Y.1952); cf. Shulof v. Westinghouse Elec. Corp., 402 F.Supp. 1262, 1264 (S.D.N.Y.1975). .See Koster v. Lumbermens Mut. Cas. Co., 330 U.S. 518, 526, 67 S.Ct. 828, 91 L.Ed. 1067 (1947); Saperstone v. Kapeiow, 279 F.Supp. 781, 783 (S.D.N.Y.1968). . See Hoffman v. Blaski, 363 U.S. 335, 342-44, 80 S.Ct. 1084, 4 L.Ed.2d 1254 (1960); Relf v. Gasch, 167 U.S.App.D.C. 238, 511 F.2d 804, 807 (1975); Foster-Milburn Co. v. Knight, 181 F.2d 949, 952-53 (2d Cir. 1950); Glicken v. Bradford, 204 F.Supp. 300, 303 (S.D.N.Y.1962) (in multi-party case, jurisdiction and venue must be proper as to al! defendants before court can transfer action)." }, { "docid": "22850931", "title": "", "text": "as applied. Hanson v. Denckla, 357 U.S. 235, 251, 253, 78 S.Ct. 1228, 2 L.Ed. 2d 1283 (1958); Vanderbilt v. Vanderbilt, 354 U.S. 416, 418, 77 S.Ct. 1360, 1 L.Ed.2d 1456 (1957); International Shoe Co. v. Washington, 326 U.S. 310, 317-319, 66 S.Ct. 154, 90 L.Ed. 95 (1945); cf. Agrashell, Inc. v. Bernard Sirotta Company, 344 F.2d 583, 586-590 (2 Cir. 1965), and concurring opinion of Chief Judge Lumbard, id. at 590; Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 319-323 (2 Cir. 1964); Arrowsmith v. United Press International, 320 F.2d 219, 233-234 (2 Cir. 1963) (en banc); Deveny v. Rheem Manufacturing Co., 319 F.2d 124, 126-128 (2 Cir. 1963); Blount v. Peerless Chemicals (P. R.) Inc., 316 F.2d 695, 696-701 (2 Cir. 1963), cert. denied, Colbert v. Peerless Chemicals, 375 U.S. 831, 84 S.Ct. 76, 11 L.Ed.2d 62 (1963); Jaftex Corp. v. Randolph Mills, Inc., 282 F.2d 508, 516-522 (2 Cir. 1960) (concurring opinion of Judge Friendly); MacInnes v. Fontainebleau Hotel Corp., 257 F.2d 832, 834-835 (2 Cir. 1958); Gkiafis v. Steamship Yiosonas, 342 F.2d 546, 554-558 (4 Cir. 1965); Lone Star Package Car Co. v. Baltimore & O. R. Co., 212 F.2d 147, 152-155 (5 Cir. 1954); First Flight Company v. National Carloading Corp., 209 F.Supp. 730, 736-740 (E.D.Tenn. 1962); Goldberg v. Mutual Readers League, Inc., 195 F.Supp. 778, 781-784 (E.D.Pa.1961); Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 451-452, 261 N.Y.S.2d 8, 14, 209 N.E.2d 68, 72 (1965); Miller v. Surf Properties, Inc., 4 N.Y.2d 475, 176 N.Y.S.2d 318, 151 N.E.2d 874 (1958). The power of a federal court to subject a non-domiciliary to its jurisdiction in a federal question case under the due process clause of the Fifth Amendment is measured by the same standards as the power of a state court to assert personal jurisdiction over a non-domiciliary under the due process clause of the Fourteenth Amendment, U. S. Const, amend. XIV (due process clause). With the utmost deference to the majority, I think it is both unnecessary and unfortunate that this case has emerged as a vehicle for application of" }, { "docid": "8490417", "title": "", "text": "Legislative Studies and Reports to CPLR § 302, in McKinney’s Consolidated Laws of New York Annotated (1963). . Cf. Kurland v. Chernobil, 260 N.Y. 254, 257, 183 N.E. 380 (1932). . See Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y.2d 443, 454 n. 4, 261 N.Y.S.2d 8, 209 N.E.2d 68 (1965). See also, Agrashell, Inc. v. Bernard Sirotta Co., 344 F.2d 583, 586-587 (2d Cir. 1965); Gelfand v. Tanner Motor Tours, Ltd., 339 F.2d 317, 320 (2d Cir. 1964); 1 Weinstein, Korn & Miller, New York Civil Practice ¶ 302.01 (1963). . See People ex rel. Hoagland v. Streeper, 12 Ill.2d 204, 145 N.E.2d 625, 630 (1957); Tebedo v. Nye, 45 Misc.2d 222, 256 N.Y.S.2d 235 (Sup.Ct.1965); Dubin v. City of Philadelphia, 34 Pa.Dist. & Co. R. 61 (C.P.1938); Goodrich, Conflict of Laws 118 (4th ed. 1964). . See N.Y. CPLR § 313. . See O’Connor v. Wells, 43 Misc.2d 1075, 252 N.Y.S.2d 861, 863 (Sup.Ct.1964). . Tebedo v. Nye, 45 Misc.2d 222, 256 N.Y.S.2d 235, 236 (Sup.Ct.1965). Cf. Hempstead Medical Arts Co. v. Willie, N.Y.L.J., Dec. 9, 1963, p. 18, col. 6, Sup. Ct., 1963. . If it had, its decision would, of course, bind this court. See West v. American Telephone & Telegraph Co., 311 U.S. 223, 236, 61 S.Ct. 179, 85 L.Ed. 139 (1940); Wichita Royalty Co. v. City Nat’l Bank, 306 U.S. 103, 107, 59 S.Ct. 420, 83 L.Ed. 515 (1939). . See Tebedo v. Nye, 45 Misc.2d 222, 256 N.Y.S.2d 235 (Sup.Ct.1965); O’Connor v. Wells, 43 Misc.2d 1075, 252 N.Y.S.2d 861, 863 (Sup.Ct.1964). While these lower court decisions are not binding on this court, they are entitled some weight. See King v. Order of United Commercial Travelers, 333 U.S. 153, 159-161, 68 S.Ct. 488, 92 L.Ed. 608 (1948); Hausman v. Buckley, 299 F.2d 696, 702 n. 10, 93 A.L.R.2d 1340 (2d Cir.), cert. denied, 369 U.S. 885, 82 S.Ct. 1157, 8 L.Ed.2d 286 (1962); Hart & Wechsler, The Federal Courts & the Federal System 628-30 (1953). Cf. Cooper v. American Airlines, Inc., 149 F.2d 355, 359, 162 A.L.R. 318 (2d Cir. 1945). But" } ]

[ { "docid": "23193621", "title": "", "text": "assured the parties that it “can and will assemble the resources that [management of these cases] requires.” (R. 27-336 at 22; R. 38-210 at 22). But litigating the plaintiffs’ claims as class actions no matter what the cost in terms of judicial economy, efficiency, and fairness runs counter to the policies underlying Rule 23(b)(3). See Fed.R.Civ.P. 23 advisory committee’s note (1966 amendment) (stating that subdivision (b)(3) encompasses those cases “in which a class action would achieve economies of time, effort, and expense”). While we recognize that Rule 23 is to be applied flexibly, the manageability problems discussed above defeat the Rule’s underlying purposes and render these claims inappropriate for class treatment. Finally, although the district court stated that class treatment may be the “only feasible method of adjudication, given the small size of each member’s claims,” (R. 27-336 at 30-31; R. 38-210 at 30-31), we note that even small individual claims under RICO can be feasible given the possibility of the award of treble damages and attorneys’ fees to successful plaintiffs. See 18 U.S.C. § 1964(c) (1994); see also Castano, 84 F.3d at 749-50 (stating that individual trials in “immature tort” context may actually enhance long-term judicial efficiency by allowing plaintiffs to winnow claims to include only strongest causes of action, thereby simplifying choice of law and predominance inquiries for eventual class treatment). V. CONCLUSION Because the district court abused its discretion in certifying the Andrews and Harper classes based on its belief that these actions would be manageable, we reverse the certification order and remand for further proceedings consistent with this opinion. REVERSED AND REMANDED. . West-Interactive is a party only in the Andrews case. In addition to the three appellants, the Andrews plaintiffs sued MCI Telecommunications Corp. (a major long distance carrier), BellSouth Communications, Inc. (a regional telephone company), and several other entities that acted as service bureaus or sponsors. The Harper plaintiffs also named MCI and Southern Bell, the predecessor of BellSouth, as defendants. MCI and BellSouth entered into comprehensive settlements with the classes that were approved by the district court in June 1995. The other defendants" } ]

[ { "docid": "20785265", "title": "", "text": "pursue an individual claim. Plaintiff argues that there are a large number of potential plaintiffs (approximately 45,000) pursuing statutory claims with a very small amount of potential recovery, and Rule 23(b)(3) is the best method of adjudication for situations like these in which the potential recovery is so small that litigation of a single claim is, as a general matter, hardly worth the cost and effort of litigation. See Matthews v. United Retail, Inc., 248 F.R.D. 210, 216 (N.D.Ill.2008) (“FACTA claims are especially well-suited to resolution in a class action where, as here, ‘potential recovery is too slight to support individual suits, but injury is substantial in the aggregate.’ ”). Defendants further argue that superiority is defeated based on Plaintiffs inability to personally identify potential class members for the purpose of mailing notice. Plaintiff responds that Rule 23(b)(3)(B) only requires that members of the class be given “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” In their opposition, Defendants acknowledge that the subject receipts likely show the registered owner of the card. In his reply suggestions, Plaintiff presents the numerous methods by which he will undertake to provide reasonable notice, all of which are sufficient to constitute the best possible notice under the circumstances. The parties also devote substantial time to debating the potentially “annihilating” effect of damages on Defendants’ business and the corresponding policy considerations behind allowing or disallowing a class action in light of such concerns. Although the Court acknowledges that the factors enumerated in Rule 23(b)(3) above are not exhaustive, the Court is not persuaded that Defendants’ concerns about the potentially ruinous effects of a judgment, settlement or other resolution regarding damages outweighs the benefit of certifying a class at this stage of the litigation. As Plaintiff has noted, the potential for a large damage award should not be considered in assessing the superiority of class certification. Class relief under Rule 23 is available for any claim unless Congress has expressly restricted relief. See Califano v. Yamasaki 442 U.S. 682, 700, 99 S.Ct." }, { "docid": "2270059", "title": "", "text": "who were subject to defendants’ allegedly illegal tip policies, met the predominance requirement of Fed.R.Civ.P. 23(b)(3). 297 F.R.D. at 126. Plaintiffs also have made the requisite showing that a class action is the superior method of adjudicating this case. “Courts routinely hold that a class action is superi- or where, as here, potential class members are aggrieved by the same policy, the damages suffered are small in relation to the expense and burden of individual litigation, and many potential class members are currently employed by the defendants.” Id. Plaintiffs argue that the superiority requirement is satisfied, and Defendants do not contest Plaintiffs’ assertions. First, Plaintiffs state that, given the small amount of each class member’s recovery, it would not make sense for each Plaintiff to expend the resources to bring separate claims. (Dkt. 143-1 at 15). Plaintiffs also state that no other litigation has been commenced by members of the class against Defendants concerning the tip credit, and supply an affirmation in support of this assertion. (Dkt. 143-2 at ¶¶ 5-7). See Hamelin, 274 F.R.D. at 398 (“the costs of maintaining separate actions would be prohibitive for potential class members and obtaining individual counsel may be difficult because of the relatively low individual damages.” Additionally, “[njeither party has advised of any pending litigation concerning the subject matter of the proposed class action.”). Finally, Plaintiffs state that this forum has the capacity to handle this litigation and that, given the common issues, the action will be manageable. (Dkt. 143-1 at 15). Accordingly, Plaintiffs’ proposed class meets the predominance and superiority requirements, and it is hereby certified under Fed.R.Civ.P. 23(b)(3). C. Plaintiffs’ Proposed Subclasses Defendants argue that Plaintiffs have proposed impermissible fail-safe classes. (Dkt. 177 at 22-24). Specifically, Defendants note that Plaintiffs have divided the proposed class into two subclasses: Subclass A: All current and former tipped employees who worked for Apple-bee’s from September 2006 to December 31, 201Q who were not provided wage statements listing allowances claimed by Applebee’s as required by 12 N.Y.C.R.R. §§ 137-2.2 (repealed). Subclass B: All current and former tipped employees working for Apple-bee’s after January 1," }, { "docid": "21458819", "title": "", "text": "Ochsner from charging the “full” chargemaster rate in the future would be meaningless, while an injunction requiring Ochsner to afford the discount that it has instituted serves no purpose. This situation leaves monetary claims for retrospective damages predominant in the case. Therefore, the “declaratory relief [Appellants] seek serves only to facilitate the award of damages,” and Rule 23(b)(2) certification is improper. Id. C. Rule 23(b)(3) To gain class certification under Rule 23(b)(3), a proposed class must satisfy Rule 23(a), and “[c]ommon questions must ‘predominate over any questions affecting only individual members’[,] and class resolution must be ‘superior to other available methods for the fair and efficient adjudication of the controversy.’ ” Am-chem, 521 U.S. at 615, 117 S.Ct. at 2246 (quoting Fed.R.CivP. 23(b)(3)). The predominance inquiry is “more demanding than the commonality requirement of Rule 23(a)” and requires courts “to consider how a trial on the merits would be conducted if a class were certified.” Bell Atl., 339 F.3d at 301, 302 (internal quotation marks omitted). Additionally, the superiority analysis “requires an understanding of the relevant claims, defenses, facts, and substantive law presented in the case.” Allison, 151 F.3d at 419. This case cannot pass muster under the Rule 23(b)(3) criteria, as Appellants present no sensible way to resolve the dispute on a class-wide basis. The district court fully explained these problems. We begin by acknowledging that class-wide breaches of state law are alleged and raise some “common” issues of law and fact. Suffice it to emphasize here, however, that given the state court’s dictate that the reasonableness of medical fees depends on multiple factors, including the services rendered, patient’s financial status, and customary fee for similar services, see Howard, 924 So.2d at 1263, it is unlikely Appellants could ever demonstrate that the chargemaster rates are unreasonable. Moreover, the court cannot simply require Ochsner to refund to uninsureds the difference between what they paid, if anything, and what insured patients paid because, as Appellants admit, insured patients paid a wide variety of discounts from the chargemaster rates depending on the individual contracts and the specific procedures involved in their care." }, { "docid": "6616994", "title": "", "text": "class representation.” Id. at 1025. In Fonte, the Florida court emphasized “there are numerous enforcement mechanisms which can protect consumers other than class actions,” such as small claims court or administrative enforcement through the State Attorney’s Office or the Department of Legal Affairs. Id. Although the Fonte court upheld the arbitration clause’s class action waiver, it concluded “the arbitration clause’s bar on an award of attorney’s fees defeats a remedial purpose of FDUTPA.” Fonte, 903 So.2d at 1024. After noting one remedial purpose of the FDUTPA was “to provide for the possibility of an attorney’s fee award” in Fla. Stat. § 501.2105, the Florida court severed the arbitration clause’s bar on attorney’s fees, while upholding the arbitration clause’s class action waiver. In contrast to Fonte, Florida’s First District Court of Appeal concluded in S.D.S. Autos, Inc. v. Chrzanoiuski, 976 So.2d 600 (Fla. 1st Dist.Ct.App.2007), that a class action bar contained in automobile lease agreements was void because it “effectively prevents consumers with small, individual claims based upon motor vehicle dealers’ violations of section 501.976, Florida Statutes (2005), from vindicating their statutory rights under FDUTPA.” Id. at 608. The S.D.S. Autos court specifically noted that an individual asserting a successful FDUTPA claim arising out of a motor vehicle dealer’s violation of the statute could recover only the attorney’s fees that were reasonable in light of the individual’s actual damages. Id. at 606 (citing the attorney’s fees provision in Fla. Stat. § 501.976). Because individual claimants were likely to have very small recoveries, the S.D.S. Autos court reasoned, any attorney’s fee award would be similarly small, effectively preventing individuals from bringing expensive cases with low actual damages. Id. at 607-08. This case does not have that concern. The regular attorney’s fees provision of the FDUTPA, Fla. Stat. § 501.2105, applies, which permits recovery of attorney’s fees and costs of any reasonable amount. Sprint’s arbitration clause does not bar attorney’s fees but provides that the Plaintiff may recover in arbitration to the extent he could in court. Thus Fonte arguably is more on point for this case. Nonetheless, given the unsettled state of" }, { "docid": "6616995", "title": "", "text": "Statutes (2005), from vindicating their statutory rights under FDUTPA.” Id. at 608. The S.D.S. Autos court specifically noted that an individual asserting a successful FDUTPA claim arising out of a motor vehicle dealer’s violation of the statute could recover only the attorney’s fees that were reasonable in light of the individual’s actual damages. Id. at 606 (citing the attorney’s fees provision in Fla. Stat. § 501.976). Because individual claimants were likely to have very small recoveries, the S.D.S. Autos court reasoned, any attorney’s fee award would be similarly small, effectively preventing individuals from bringing expensive cases with low actual damages. Id. at 607-08. This case does not have that concern. The regular attorney’s fees provision of the FDUTPA, Fla. Stat. § 501.2105, applies, which permits recovery of attorney’s fees and costs of any reasonable amount. Sprint’s arbitration clause does not bar attorney’s fees but provides that the Plaintiff may recover in arbitration to the extent he could in court. Thus Fonte arguably is more on point for this case. Nonetheless, given the unsettled state of Florida law, we do not decide the issue of whether Sprint’s class action waiver is void for any other reason and include this issue, too, in our certification to the Florida Supreme Court. III. CONCLUSION In conclusion, the resolution of this appeal depends on unsettled questions of Florida law as to whether the class action waiver presented in this case is procedurally or substantively unconscionable or is void for other reasons. Rather than attempting an Erie “guess” as to how the Florida Supreme Court would rule on this issue, we certify the following questions to the Florida Supreme Court, pursuant to Fla. Const, art. V, § 3(b)(6). See Rando v. Gov’t Employees Ins. Co., 556 F.3d 1173, 1181 (11th Cir.2009). (1) Must Florida courts evaluate both procedural and substantive unconscionability simultaneously in a balancing or sliding scale approach, or may courts consider either procedural or substantive uneonscionability independently and conclude their analysis if either one is lacking? (2) Is the class action waiver provision in Plaintiffs contract with Sprint procedurally unconscionable under Florida law? (3)" }, { "docid": "17156147", "title": "", "text": "of them claims because FDUTPA allows a prevailing party to recover attorney’s fees. See Marino v. Home Depot U.S.A., Inc., 245 F.R.D. 729, 737 (S.D.Fla. 2007) (noting that class action was not superior or only method of adjudication of FDUTPA claim because FDUTPA provides for attorney’s fees). The undersigned concludes that a class action in the instant case would not be the superior method of adjudication. In sum, the plaintiff cannot satisfy Rule 23(b)(3) with respect to either its warranty claims or FDUTPA claim. The undersigned finds that individualized issues of law predominate as to all claims because the Court would have to apply the laws of the various interested states. Additionally, with respect to the breach of express warranty claim, notice and a showing that the putative class member’s injury was caused by the defen dant’s breach would have to be established on an individualized basis. With respect to the breach of implied warranty claim, each putative class member would have to show reliance. Individual factual determinations also predominate as to the FDUTPA claim because each putative class member would have to show that it received the marketing materials and that it was harmed as a result of the defendant’s offending conduct. Because individual factual and legal issues predominate, the plaintiff cannot show that a class action would be the superior method of adjudication. Additionally, with respect to the FDUTPA claim, putative class members would not be deterred from prosecuting even nominal claims because FDUTPA provides for an award of attorney’s fees to the prevailing party. CONCLUSION The plaintiff is not entitled to class certification on the warranty claims. The undersigned concludes that, had the plaintiff proposed workable warranty class definitions, the plaintiff would have satisfied the numerosity, commonality, typicality and adequacy requirements of Rule 23(a). Nonetheless, the plaintiff is not entitled to class certification of its warranty claims because the plaintiff failed to satisfy the requirements of Rule 23(b)(3). With respect to the FDUTPA claim, even if the plaintiff were to cure the defective FDUTPA class definition, the plaintiff cannot satisfy the typicality and adequacy requirements of Rule" }, { "docid": "20259770", "title": "", "text": "2250. Lastly, the superiority requirement of Rule 23(b)(3) has not been met here because a class action is not “superior to other available methods for fair and efficient adjudication of [this] controversy.” Fed.R.Civ.P. 23(b)(3). The parties’ main argument in support of the settlement, i.e. that it is just when compared to the CLA’s $500,000 damages cap, actually supports finding that a class action is not the superior method for adjudicating the controversy. Since 650,000 notices were sent out and only 1000 opt-outs were received, if this class action suit went to trial and resulted in the maximum $500,000 cash award available under the CLA, each class member would be entitled to less than one dollar of the total settlement. See 15 U.S.C. § 1640(a)(2)(B) (limiting the award in a class action under the CLA to “the lesser of $500,000 or 1 per centum of the net worth of the creditor”). Each class member would unquestionably fare better by bringing an individual action alleging CLA and unfair trade practices claims. First, by bringing an individual action, they would not forego their unfair trade practices claims, which in many states could result in payment of statutory minimum damages. See, e.g., Mich. Comp. Laws § 445.901; Ohio Rev.Code § 1345.01; Pa. Stat. tit. 73 § 201-1; R.I. Gen. Law. § 6-13.1-1. Furthermore, regardless of the potential recovery under the applicable unfair trade practices statute, under the CLA, an individual plaintiff would be entitled to a minimum of $100 and a maximum of $1000. See 15 U.S.C. § 1640(a)(2)(A). This recovery is substantially greater than the de minimis recovery that the class member would receive under § 1640’s $500,000 damages cap. For these reasons, this proposed settlement class is not certifiable under the requirements of Rule 23. However, even if the proposed settlement class could have been certified, the court would have rejected the settlement as an unreasonable compromise of the class members’ claims. II. Rejecting the Terms of the Settlement In order to be approved, a settlement must be adequate, fair and reasonable. See Malchman v. Davis, 706 F.2d 426, 433 (2d Cir.1983)" }, { "docid": "16168394", "title": "", "text": "277, 309 (3d Cir.2005) (citing Georgine v. Amchem Prods., Inc., 83 F.3d 610, 632 (3d Cir.1996)). Plaintiff contends that a class action is the superior method of adjudication in consumer protection cases, like this one, where the cost of pursuing individual litigation is too high or would result in inefficiencies and a burden on the courts. (Pl.’s Mot. for Class. Cert. 19.) See also Prudential, 148 F.3d at 316; Lake v. First Nationwide Bank, 156 F.R.D. 615, 626 (E.D.Pa.1994) (finding that the class action form was the superior method of resolving statutory allegations of mortgage agreement violations because “[t]he alternative to pursuing a class action is a series of state court actions by a large number of scattered plaintiffs, an inefficient allocation of judicial and public resources”). Equifax responds that superiority is defeated in this case by the availability of individual FCRA actions that entitle plaintiffs to both actual damages and attorney’s fees. (Def.Opp.28.) This is a case where there are a large number of potential plaintiffs pursuing statutory claims with a relatively small amount of potential recovery. Rule 23(b)(3) is the best method of adjudication for situations like these in which the potential recovery is “typically so small ... that litigation of a single claim is, as a general matter, hardly worth the cost and effort of litigation.” Seawell v. Universal Fidelity Corp., 235 F.R.D. at 68; See also Amchem, 521 U.S. at 617, 117 S.Ct. 2231 (“The policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.”). Without the class action suit, many putative class members would lack the incentive to bring individual suits against defendants, “due in part to the small individual losses associated with each potential claim.” Jordan, 237 F.R.D. at 140; In re Prudential, 148 F.3d at 316 (affirming district court’s finding of superiority where “the court examined the relatively modest size of individuals claims and the sheer volume of those claims in the aggregate, and concluded a class" }, { "docid": "20785264", "title": "", "text": "argument that proof of wilful non-compliance with FACTA will require individual proof is without merit. Accordingly, the Court finds that Plaintiff has met the predominance requirement. 2. Superiority. Rules 23(b)(3) requires that class resolution be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). Rule 23(b)(3) lists four factors relevant to the superiority analysis: (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (d) the difficulties likely to be encountered in the management of a class action. Fed.R.Civ.P. 23(b)(3). Defendants correctly note that FAC-TA provides for recovery of punitive damages and attorneys’ fees and costs as well as damages. 15 U.S.C. § 1681n. However, as Plaintiff notes, where the potential recovery is slight compared to the cost of litigation, there is little incentive to pursue an individual claim. Plaintiff argues that there are a large number of potential plaintiffs (approximately 45,000) pursuing statutory claims with a very small amount of potential recovery, and Rule 23(b)(3) is the best method of adjudication for situations like these in which the potential recovery is so small that litigation of a single claim is, as a general matter, hardly worth the cost and effort of litigation. See Matthews v. United Retail, Inc., 248 F.R.D. 210, 216 (N.D.Ill.2008) (“FACTA claims are especially well-suited to resolution in a class action where, as here, ‘potential recovery is too slight to support individual suits, but injury is substantial in the aggregate.’ ”). Defendants further argue that superiority is defeated based on Plaintiffs inability to personally identify potential class members for the purpose of mailing notice. Plaintiff responds that Rule 23(b)(3)(B) only requires that members of the class be given “the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort.” In their opposition, Defendants acknowledge that" }, { "docid": "6333153", "title": "", "text": "employees may feel inhibited to sue making joinder unlikely. Although there is only plaintiffs suggestion of intimidation in this instance, the nature of the economic dependency involved in the employment relationship is inherently inhibiting. Further, the court does not agree with defendants’ assertion that the availability of the FLSA action cures these problems. Id. The court finds Judge Lefkow’s reasoning persuasive. The numerosity requirement is met. Maintenance of a Class Action Under Rule 23(b) Defendants assert that plaintiffs cannot maintain a Rule 23(b)(2) class action because plaintiffs seek primarily monetary rather than injunctive relief. Furthermore, defendants contend that a Rule 23(b)(3) action cannot be maintained because plaintiffs have failed to show that a class action is superior to other methods for adjudicating the claims at issue. Defendants are correct that a Rule 23(b)(2) action is inappropriate here. “Class certification under [Rule 23(b)(2) ] generally is not appropriate when a party primarily seeks monetary relief.” Liberty Mut. Ins. Co. v. Tribco Const. Co., 185 F.R.D. 533, 542 (Mar. 22, 1999); see also Moore’s Federal Practice, Vol. 5, § 23.43[3][a] (1998) (“As a general rule, class certification under Rule 23(b)(2) is improper if the primary relief sought by the action is monetary.”) Plaintiffs’ prayers for relief under counts 1 and 2 seek back wages, prejudgment interest on back wages, attorneys’ fees and costs, and an accounting for all hours worked and wages paid to class members. It appears that plaintiffs primarily seek monetary, not injunctive relief. Therefore, a class action should not be certified under Rule 23(b)(2). The next question is whether such a class could be certified under Rule 23(b)(3). Rule 23(b)(3) provides that a class can be maintained if “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and ... a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.Pro. 23(b)(3). Defendants do not dispute that plaintiffs satisfy the predominance element of the above test. Rather, defendants contest the superiority element, arguing that a class action would not be superior" }, { "docid": "5072475", "title": "", "text": "National Bank Act, 12 U.S.C. §§ 85, 86, provides neither for a minimum recovery nor for an award of costs and attorney’s fees. In the absence of such a statutory incen tive, the class suit provides small claimants like plaintiffs in this case the only practicable method of obtaining judicial consideration of their grievances. The potential recovery is too small to justify individual litigation. Thus, if a class action is denied in this case, one of the principal functions of Rule 23 — to provide a means of vindicating wrongs which, although involving only small amounts individually, affect a large number of people — will be thwarted. See, e. g., Eisen v. Carlisle & Jacqueline, 391 F.2d 555 (2nd Cir. 1968); Shields v. First National Bank, 56 F.R.D. 442 (D.Ariz.1972); Dolgow v. Anderson, 43 F.R.D. 472 (E.D.N.Y.1968); Kaplan, A Prefatory Note, 10 B.C.Ind. & Comm.L. Rev. 497 (1969); Advisory Committee on Rule 23, supra, 39 F.R.D. at 104. Class treatment in this case, far from being inconsistent with the remedy provided by Congress in Title 12, Section 86, makes that remedy accessible to the plaintiffs. The superiority prerequisite requires a determination that a class suit would be the best way of channeling and adjudicating claims. It is a comparative requirement which presumes the availability of other methods of adjudication. Only in rare instances, such as where the expense of maintaining the action would exceed any recovery which might accrue to the class members, or where other factors would make a class suit completely unmanageable, is a court justified in denying class treatment when to do so effectively denies access to the courts. The expense of maintaining this action is liberally estimated at approximately $100,000, which is far less than the total expected recovery, based on a conservative estimate, of close to $1,000,000. The cost of administering relief, then, quite clearly provides no ground for denying class treatment. Whether the class is otherwise manageable depends on several factors, including the size of the class, whether notice can be reasonably effected and whether damages can be adjudicated and relief awarded in an" }, { "docid": "20785263", "title": "", "text": "that Plaintiff cannot make a showing of predominance because the amount of statutory damages must be assessed on a case-by-case basis. Defendants contend that such statutory damages cannot be applied with precision on a class-wide basis and individual issues would need to be litigated. Plaintiff responds that the fact that there may be individual differences in the amounts of damages claimed by the class members or their statutory damage remedies will not defeat predominance under Rule 23(b)(3). Hurwitz v. R.B. Jones Corp., 76 F.R.D. 149, 171 (W.D.Mo.1977). Indeed, as Plaintiff points out, “The individuation of damages in consumer class actions is rarely determinative under Rule 23(b)(3). Where [ ] common questions predominate regarding liability, then courts generally find the predominance requirement to be satisfied even if individual damages issues remain.” Smilow v. Southwestern Bell Mobile Systems, Inc., 323 F.3d 32, 40 (1st Cir.2003); see also In re Workers’ Compensation, 130 F.R.D. 99, 110 (D.Minn.1990) (even where individual questions of damages are a problem, they “are rarely a barrier to certification.”). Additionally, as already noted, Defendants’ argument that proof of wilful non-compliance with FACTA will require individual proof is without merit. Accordingly, the Court finds that Plaintiff has met the predominance requirement. 2. Superiority. Rules 23(b)(3) requires that class resolution be “superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). Rule 23(b)(3) lists four factors relevant to the superiority analysis: (a) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (b) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (c) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; and (d) the difficulties likely to be encountered in the management of a class action. Fed.R.Civ.P. 23(b)(3). Defendants correctly note that FAC-TA provides for recovery of punitive damages and attorneys’ fees and costs as well as damages. 15 U.S.C. § 1681n. However, as Plaintiff notes, where the potential recovery is slight compared to the cost of litigation, there is little incentive to" }, { "docid": "17156146", "title": "", "text": "partially based on omissions by the defendant, individual fact questions would still predominate. B. Superiority The plaintiff argues that class treatment is superior to hundreds or thousands of individual actions which could yield inconsistent results. “Even if damage issues are ultimately tried individually, the efficiencies gained by use of a class action will ultimately benefit all of the class members and the defendant by a dramatic reduction in litigation expenses.” See Memorandum of Law in Support of Plaintiffs Motion for Class Certification (DE# 61 at 17, 12/7/07). The defendant counters that a class action would not be manageable under the facts of the instant case because individualized analysis would have to occur as to each class member. Because individual factual and legal issues predominate, a class action proceeding in the instant case would be unmanageable. Additionally, at least with respect to the FDUTPA claim, a class action is not the superior or only mechanism for resolving this claim. Individuals who have standing to bring a FDUTPA claim would not be deterred by the nominal value of them claims because FDUTPA allows a prevailing party to recover attorney’s fees. See Marino v. Home Depot U.S.A., Inc., 245 F.R.D. 729, 737 (S.D.Fla. 2007) (noting that class action was not superior or only method of adjudication of FDUTPA claim because FDUTPA provides for attorney’s fees). The undersigned concludes that a class action in the instant case would not be the superior method of adjudication. In sum, the plaintiff cannot satisfy Rule 23(b)(3) with respect to either its warranty claims or FDUTPA claim. The undersigned finds that individualized issues of law predominate as to all claims because the Court would have to apply the laws of the various interested states. Additionally, with respect to the breach of express warranty claim, notice and a showing that the putative class member’s injury was caused by the defen dant’s breach would have to be established on an individualized basis. With respect to the breach of implied warranty claim, each putative class member would have to show reliance. Individual factual determinations also predominate as to the FDUTPA claim" }, { "docid": "6333152", "title": "", "text": "upwards of $50,000, are able to finance lawsuits on their own. While it is debatable whether plaintiffs who earn this much money could afford to finance individual lawsuits under counts 1 and 2, it is clear, as plaintiffs argue, that attorney’s fees and costs could easily exceed any individual recovery. Therefore, plaintiffs would be deterred from filing separate claims. Finally, a very important concern is the fear of retaliation for individual employees required to file individual claims, either on their own or as part of the FLSA collective action which is currently underway in this suit. The court in Ladegaard v. Hard Rock Concrete Cutters, Inc., 2000 WL 1774091 (N.D.Ill.Dec.1, 2000) is handling a very similar case and addressed this factor in its determination of whether the numerosity requirement was met for the purposes of certifying a class. There, a class of sixty employees is filing suit against a company for the same violations alleged in this case. See id. at *4. Addressing the fear of retaliation, Judge Lefkow’ stated: Plaintiff has asserted that current employees may feel inhibited to sue making joinder unlikely. Although there is only plaintiffs suggestion of intimidation in this instance, the nature of the economic dependency involved in the employment relationship is inherently inhibiting. Further, the court does not agree with defendants’ assertion that the availability of the FLSA action cures these problems. Id. The court finds Judge Lefkow’s reasoning persuasive. The numerosity requirement is met. Maintenance of a Class Action Under Rule 23(b) Defendants assert that plaintiffs cannot maintain a Rule 23(b)(2) class action because plaintiffs seek primarily monetary rather than injunctive relief. Furthermore, defendants contend that a Rule 23(b)(3) action cannot be maintained because plaintiffs have failed to show that a class action is superior to other methods for adjudicating the claims at issue. Defendants are correct that a Rule 23(b)(2) action is inappropriate here. “Class certification under [Rule 23(b)(2) ] generally is not appropriate when a party primarily seeks monetary relief.” Liberty Mut. Ins. Co. v. Tribco Const. Co., 185 F.R.D. 533, 542 (Mar. 22, 1999); see also Moore’s Federal Practice, Vol." }, { "docid": "300821", "title": "", "text": "in this suit. Third, concentrating the litigation of the claims in this Court maximizes judicial efficiency and economy as this Court is already familiar with the facts and the issues in this suit. Fourth and finally, as of the undersigned date, the Court does not anticipate significant difficulties with class management based upon the issues presented and the relief requested. Therefore, because all four factors of Rule 23(b)(3) favor class certification, the proposed class action is the superior method for adjudicating this lawsuit. In addition to the enumerated considerations in Rule 23(b)(3), courts have considered the costs and logistical inconvenience associated with joinder or multiple individual lawsuits in determining whether a class action is superior. See Bywaters v. United States, 196 F.R.D. 458, 470 (E.D.Tex.2000). Further, the greatest indication that a class action would be superior to other available methods of adjudication is a “negative value suit.” Norwood v. Raytheon Co., 237 F.R.D. 581, 604 (W.D.Tex.2006). “A ‘negative value suit’ is a case ‘in which the costs of enforcement in an individual action would exceed the expected individual recovery.’” Id. (quoting In re Inter-Op Hip Prosthesis Liab. Litig., 204 F.R.D. 330, 348 (N.D.Ohio 2001)). “If potential damages recoverable by class members are substantial, the lawsuit does not qualify as a negative value suit.” Corley v. Entergy Corp., 220 F.R.D. 478, 489 (E.D.Tex.2004). In the suit at bar, the claims of the putative class members can be easily calculated and, as previously stated in this opinion, are in small amounts that make it uneconomical for individuals to pursue the claims on their own. [Finding of Fact No. 17.] Litigation costs would very likely exceed the individual recovery amounts. Because the fees and costs charged range from $0 to $2,600.00, and because attorneys’ fees for an adversary proceeding could be well in excess of $2,600.00 over the life of the suit, a class action is the more economical and efficient way for these Plaintiffs to prosecute their claims against Wells Fargo. Moreover, many of the over 1,200 putative class members may not have access to counsel to pursue their claims outside of" }, { "docid": "9803189", "title": "", "text": "of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; (D) the difficulties likely to be encountered in the management of a class action. Fed.R.Civ.Pro. 23(b)(3). Plaintiff argues that the class action form is the superior method for adjudicating this controversy. Plaintiff asserts that this case is an example of consumer litigation for which the class action form is particularly apt. The injured consumers rarely bring an individual action for numerous reasons. The consumers lack the finances to bring a lawsuit, and such a lawsuit would not be economically feasible given the small awards involved in an individual action. Additionally, many consumers remain unaware of violations of their rights and, therefore, do not consider the option of suing. Defendants argue that the class action form is not the best way to adjudicate this case. Defendants contend that plaintiffs lawyers will be the only ones to gain any benefit from the suit.. Plaintiffs counsel -will receive large fees after subjecting defendants to heavy administrative costs and after securing only small recoveries for the class members. The FDCPA caps damages in individual eases to the actual damages suffered by plaintiff plus up to $1,000 in statutory damages. 15 U.S.C. § 1692k(a)(1)-(2)(A). By contrast, the FDCPA caps class-action damages to the actual damages suffered by the class members plus the lessor of $500,-000 or one percent of the defendant’s net worth. 15 U.S.C. § 1692k(a)(2)(B)(ii). Because of the defendants’ probable net worth, the maximum statutory damages in this class action are $500,000. Since plaintiffs counsel asserts that no class member suffered pecuniary harm, the 420,000 potential class members in this case will have a maximum recovery of under $2&emdash;substantially less than the damages available in individual suits. Citing cases, defendants conclude that, when the class members are likely to recover such a small amount, class certification is not appropriate. It is well established that class actions are often the superior form of adjudication when" }, { "docid": "7419995", "title": "", "text": "Antitrust Litig., 202 F.R.D. 12, 31 (D.D.C.2001) (explaining that a class action is superior because “[a] class action would also provide inclusion of those members who would otherwise be unable to afford independent representation”). The alternative method of resolving the plaintiffs’ claims is through individual, single-plaintiff suits. A class action will be more efficient than individual actions because all of the cases will require the courts to determine whether the MPP promotions process is discriminatory. Moreover, a class action will promote uniformity in decisions. The plaintiffs also argue that a class action is superior because many putative class members will not pursue an individual suit “in light of the substantial expert costs associated with documenting the MPP’s discriminatory nature and impact[J” Pis.’ Mem. for Class Cert, at 80. The defendant counters that the hope of high damages awards is sufficient to compel plaintiffs to bring individual suits. The Supreme Court has acknowledged that “ ‘[t]he policy at the very core of the class action mechanism is to overcome the problem that small recoveries do not provide the incentive for any individual to bring a solo action prosecuting his or her rights.’ ” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 617, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (quoting Mace v. Van Ru Credit Corp., 109 F.3d 338, 344 (7th Cir.1997)). However, “the text of Rule 23(b)(3) does not exclude from certification cases in which individual damages run high[.]” Id. Moreover, the defendants cite no evidence for their assertion that the plaintiffs may potentially recover large damage awards. At any rate, the interests of efficiency and uniformity support a finding that a class action is a superior method of adjudicating the plaintiffs’ claims. Thus, the class will be certified under Rule 23(b)(3). C. Notice If a court certifies a class under Rule 23(b)(3), the court must direct to class members the best notice that is practicable under the circumstances, including individual notice to all members who can be identified through reasonable effort. The notice must clearly and concisely state in plain, easily understood language: (i) the nature of the action;" }, { "docid": "16662343", "title": "", "text": "“aggregate unliquidated tort claims on a limited fund rationale.” Id. at 842, 119 S.Ct. 2295. The reasons are obvious. Rule 23(b)(1)(B) provides for mandatory classes. Class members are not given notice and an opportunity to opt out, because the notice provisions in Rule 23(c)(2) apply only to classes certified under Rule 23(b)(3). Id. at 833 n. 13, 119 S.Ct. 2295. Accepting plaintiffs’ theory, any putative class action where the potential damages were greater than the defendant’s net worth should be certified as a Rule 23(b)(1)(B) limited fund class. This is precisely what the Supreme Court rejected in Ortiz. Accordingly, the court concludes that plaintiffs’ claim for statutory damages cannot be maintained as a Rule 23(b)(1)(B) limited fund class. That leaves Rule 23(b)(3) as the only viable option for plaintiffs’ maintenance of a class action. Rule 23(b)(3) requires plaintiffs to demonstrate “that questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.P. 23(b)(3). Trans Union argues that a class action is not the superior method for the fair and efficient adjudication of the controversy before the court. . As noted, the FCRA is one of seven sub-chapters of the Consumer Credit Protection Act, 15 U.S.C. § 1601 et seq. Each of the other subchapters specifically provides a cap on class action damages. The FCRA does not. Neither the parties nor the court have found a case addressing the issue of class certification for statutory damages under the FCRA pursuant to Rule 23(b)(3). Trans Union argues that plaintiffs’ putative class action is “strikingly similar to actions brought under TILA shortly after its enactment,” prior to being amended to provide for the class action damage cap. As enacted, TILA provided for recovery of statutory damages of twice the amount of the finance charge imposed in the transaction, but not less than $100 or more than $1,000 plus fees and costs. As enacted, the statute was silent as to the availability of class" }, { "docid": "17634925", "title": "", "text": "following guidance regarding the superiority requirement: In determining superiority, courts must consider the four factors of Rule 23(b)(3). “A consideration of these factors requires the court to focus on the efficiency and economy elements of the class action so that cases allowed under subdivision (b)(3) are those that can be adjudicated most profitably on a representative basis.” Zinser, 253 F.3d at 1190 (quoting 7A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1780 at 562 (2d ed.1986)). In the present case, examination of the four subfactors under Rule 23(b)(3) persuade the court that class action treatment is appropriate. 1. Rule 23(b)(3)(A) The first inquiry focuses on the interest of each member in “individually controlling the prosecution or defense of separate actions.” Fed.R.Civ.P. 23(b)(3)(A). “Where damages suffered by each putative class member are not large, this factor weighs in favor of certifying a class action.” Zinser, 253 F.3d at 1190. Here, the Plaintiffs’ claims are based on alleged overcharges for official fees and illegal roll backs coupled with false disclosures. The claims based on the alleged overcharge for official fees is clearly minimal and based on the evidence provided to the court, range from $6.83 to $433.00. The amount of damages available for a violation of the Odometer Act is dictated by statute at “3 times the actual damages or $1,500, whichever is greater.” 49 U.S.C. § 32710(a) (1994). In addition, the Odometer Act provides for an award of “costs and a reasonable attorney’s fee to the person when a judgment is entered for that person.” Id. § 32710(b). The Plaintiffs do not present an exact amount of the potential recovery for each class member but argue that “[i]t is apparent that the instant action is one in which the average recovery would be relatively modest.” The amount of damages available for a customer who bought a used car with more mileage than expected does not appear sufficiently significant to create a substantial interest in each class member to prosecute separate actions. Although there may be a range of potential recovery within the class," }, { "docid": "6333154", "title": "", "text": "5, § 23.43[3][a] (1998) (“As a general rule, class certification under Rule 23(b)(2) is improper if the primary relief sought by the action is monetary.”) Plaintiffs’ prayers for relief under counts 1 and 2 seek back wages, prejudgment interest on back wages, attorneys’ fees and costs, and an accounting for all hours worked and wages paid to class members. It appears that plaintiffs primarily seek monetary, not injunctive relief. Therefore, a class action should not be certified under Rule 23(b)(2). The next question is whether such a class could be certified under Rule 23(b)(3). Rule 23(b)(3) provides that a class can be maintained if “questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and ... a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed.R.Civ.Pro. 23(b)(3). Defendants do not dispute that plaintiffs satisfy the predominance element of the above test. Rather, defendants contest the superiority element, arguing that a class action would not be superior to maintaining a FLSA collective action. Furthermore, defendants argue that it would be confusing for class members to receive notice telling them that in order to join the FLSA collective action, they need to opt-in, while for the class action, they are considered members unless they opt out. In order to determine whether plaintiffs have satisfied the superiority test, the court must consider (A) the interest of members of the class in individually controlling the prosecution or defense of separate actions; (B) the extent and nature of any litigation concerning the controversy already commenced by or against members of the. class; (C) the desirability or undesirability of concentrating the litigation of the claims in the particular forum; [and] (D) the difficulties likely to be encountered in the management of a class action. Fed.R.Civ.Pro. 23(b)(3)(A)-(D). A class action is superior to other methods for adjudicating plaintiffs’ state claims in counts 1 and 2. As in the case of Ladegaard, the court in this case “has not been informed by either party of any pending suits brought" } ]

[ { "docid": "15597181", "title": "", "text": "of Green River soda ash. The 19 petitioners (4 producers of soda ash and 15 receivers) allege in a complaint filed in March 1981 that the rates assessed by the intervenor railroads on Green River soda ash over 238 specified routings to 157 destinations are unreasonably high in violation of the Interstate Commerce Act. They seek both prescription of reasonable rates for the future and reparations for past shipments. Forty-nine intervenors (39 railroads and 10 belt or terminal operators) contest this allegation. The complaint was adjudicated in a bifurcated procedure. Before it can reach the second stage of assessing the reasonableness of rail rates, the ICC must clear two preliminary jurisdictional hurdles. First it must determine that the challenged rates exceed a specified revenue/variable cost ratio, set on a graduated scale chronologically. See 49 U.S.C. § 10709(d)(2) (1982). Second, it must find that the railroads have “market dominance,” defined as “the absence of effective competition from other carriers or modes of transportation, for the traffic or movement to which a rate applies.” 49 U.S.C. § 10709(a) (1982). Therefore the Administrative Law Judge (AU) assigned to the instant case made two separate decisions: in Phase I he decided that the railroads did have market dominance over those movements for which the rates exceeded the revenue/variable cost threshold, but in Phase II he concluded that they nonetheless were not charging unreasonable rates. This separation of market dominance determinations from assessments of rate reasonableness reflects Congress’ conscious rejection of perfect competition as the governing norm in railroad regulation. Rail regulation under the 4-R Act does not require regulation of rates merely because of market imperfection. See H.R.Conf.Rep. No. 781, 94th Cong., 2d Sess. 148 (1976). Rather, the bifurcated procedure permits the conclusion that effective competition is lacking and therefore the railroads have market dominance, but that the rates assessed by the railroads are nonetheless “reasonable.” See H.R.Conf.Rep. No. 768, 94th Cong., 1st Sess. 121 (1975). The isolation of the market dominance inquiry thus is central to Congress’ plan of structured deregulation in the rail industry. In deciding whether the railroads have market dominance," } ]

[ { "docid": "21097138", "title": "", "text": "Act of 1995 that the Surface Transportation Board may begin an investigation into the reasonableness of a carrier’s rates “only on [the] complaint” of an affected shipper. Id. § 11701(a). If the Board finds the carrier dominates the relevant market, then it must determine whether the rate charged the shipper is “reasonable.” Id. § 10701(d)(1). If the rate is “unreasonable,” id. § 10707(c), then the Board may prescribe the maximum lawful rate, id. § 10704(a)(1), and order the railroad to pay reparations to the complainant, id. § 11704(b). The Board is precluded, however, from finding market dominance and in turn regulating the rate if the revenue generated thereby does not exceed 180% of the carrier’s variable cost of service. Id. § 10707(d)(1)(A). The Board evaluates the “reasonableness” of rail rates in light of the standards promulgated by its predecessor, the Interstate Commerce Commission, see Coal Rate Guidelines, Nationwide, 1 I.C.C.2d 520 (1985), aff'd sub nom. Consol. Rail Corp. v. United States, 812 F.2d 1444 (3d Cir.1987). In the Coal Rate Guidelines the Commission adopted the principles of Constrained Market Pricing (CMP) to set upper limits on the rates a railroad may charge its “captive shippers” — those customers who do not have practical access to an alternative carrier and who, because of their inelastic demand, the railroads may charge rates that significantly exceed the variable cost of service. Id. at 521. The Commission concluded that these principles would “meet [its] dual objectives of providing railroads the real prospect of attaining revenue adequacy while protecting coal shippers from ‘monopolistic’ pricing practices.” Id. at 524-25. Under CMP, rail carriers set their own rates for rail service, subject to three main constraints: revenue adequacy, management efficiency, and stand-alone cost. See id. at 534-46. A shipper may challenge a rate either on a system-wide basis, by arguing that the rate charged exceeds the amount necessary for the railroad to achieve “revenue adequacy [as] adjusted for demonstrated management inefficiencies,” id. at 534 & n. 35, or as in this case, under the stand-alone cost (SAC) test, which is designed to prevent “cross-subsidization.” Id. at 541." }, { "docid": "3626541", "title": "", "text": "rates, and established that the Commission could not find market dominance if the disputed rate yielded an R/VC ratio lower than a specified figure — which started at 160% in the first year, rose in increments of 5% a year, and stabilized at 180% in the fifth. See 49 U.S.C. § 10709(d)(2)(A)-(E). Even where market dominance was shown, the Commission was to consider the railroads’ need to earn adequate revenue: [i]n determining whether a rate established by a rail carrier is reasonable ... the Commission shall recognize the policy of this title that rail carriers shall earn adequate revenues, as established by the Commission under section 10704(a)(2) of this title. 49 U.S.C. § 10701a(b)(3). Congress explained that the change was in response to the failure of its previous efforts to require the Commission to give attention to revenue adequacy: Previous admonitions by the Congress that the Commission assist carriers in earning adequate revenue levels (49 U.S.C. § 10704) have not achieved their goals. As a result, the Committee is establishing a more straight forward mandate. This is a clear directive to ensure financially sound railroads, and the Commission is not to misuse the term “reasonable” to circumvent this directive. H.Rep. No. 1035, 96th Cong., 2d Sess. at 54 (May 16, 1980) [U.S.Code Cong. & Admin.News p. 3999]. See also S.Rep. No. 499, 94th Cong., 2d Sess. at 11 (Nov. 26, 1975) [U.S.Code Cong. & Admin.News pp. 24, 25] (similar). When the Commission began to develop its Coal Rate Guidelines in 1983, it adopted Ramsey pricing as “the appropriate analytical theory.” See Ex Parte No. 347 (Sub-No. 1), Coal Rate Guidelines— Nationwide (unpublished decision issued Feb. 8, 1983), hereinafter 1983 Interim Coal Rate Guidelines at 9. It explained that Ramsey pricing was designed for cases where marginal cost is below average cost. Where that is true, a regulated firm forced to sell at marginal cost cannot recoup its total costs. Under Ramsey pricing, the regulator allows firms to charge each user a premium over marginal cost in inverse proportion to the elasticity of the user’s demand. Because the highest charges fall" }, { "docid": "5948356", "title": "", "text": "time limits are imposed upon the parties for the presentation of their opposition to the proposed rate. Under § 10729, unless the Commission determines within 180 days after filing the notice that the proposed rate would be unlawful for any reason under the Interstate Commerce Act, the rail carrier may publish the rate, which may not then be suspended or set aside as unlawful for a period of five years from its effective date (except for situations not pertinent here). Section 10729 gives an additional advantage to the carriers in that in any hearing pertaining to a capital incentive rate the burden of proof is upon the protestant. Ex parte No. 327, Rate Incentive for Investment Capital, 353 I. C.C. 754, 767 (1977). CP&L and Texas chose to attack the proposed rate under two sections. First, they attacked the rate under § 10709(c) as exceeding “a reasonable maximum.” As part of the attempt to deregulate rail rates, Congress established as a prerequisite for a finding that a rate exceeds a reasonable maximum a requirement that the protestant must establish the carrier has “market dominance over the transportation to which the rate applies.” § 10709(c). “Market dominance” is defined as “an absence of effective competition from other carriers or modes of transportation for the transportation to which a rate applies.” § 10709(a). Section 202(b) of the Reform Act requires the Commission to establish rules, standards and procedures to determine when a carrier possesses market dominance over a service rendered. This section requires the Commission to design such rules to “provide for a practical determination without administrative delay.” In response to this requirement, the Commission in a continuing proceeding, entitled Ex parte No. 320, Special Procedures for Findings of Market Dominance, promulgated the regulations now found at 49 C.F.R. § 1109.1 (1979). These regulations establish four rebuttable presumptions to aid the Commission in ascertaining whether market dominance exists. 49 C.F.R. § 1109.1(f) and (g). The rebuttable presumptions are (1) that “the rate in issue has been discussed, considered or approved upon a rate bureau agreement,” (2) that “the proponent carrier has handled" }, { "docid": "2079637", "title": "", "text": "its most recent standards of market dominance should apply to pending § 229 cases. We affirm. . 94 Stat. 1895, codified in various sections of 49 U.S.C. § 10101 et seq. . 90 Stat. 31, codified in various sections of titles 15, 31, 45 and 49 U.S.C. . “The railroads see the Reform Act as directed at blowing away the clutter and cobwebs of outmoded regulation, permitting our rail system to regain initiative and vigor. Under this view, the Commission emerges as clutching on to its musty jurisdiction against the inroads of reform. The utilities complain that the railroads’ enthusiasm for competition is marred by the tenacity of their grip on their antitrust exemption, a quest for power without responsibility.” Atchison, T. & S.F. Ry. Co. v. ICC, 580 F.2d 623, 640 (D.C.Cir.1978). . The regulations require that the railroads come forward with any evidence of product or geographic competition. Once the railroad has done so, the shipper has the burden of proving that the identified competition is not effective. The Commission’s new regulations take an approach not unlike that urged originally by agencies with statutory responsibility for advising the Commission. Those agencies argued, at the time that the Commission first considered market dominance standards, that “the use of presumptions to find market dominance” inappropriately “oversimplifi[es] a complex area”, id. at 630. . Section 229 provides in full: “(a) Any rate that is in effect on the effective date of this Act for transportation by a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission under subchapter I of chapter 105 of title 49, United States Code, may, during the 180-day period beginning on such effective date, be challenged in a complaint filed with the Interstate Commerce Commission by any interested party alleging that the rail carrier has market dominance over the transportation to which the rate applies, as determined under section 10709 of such title, and that the rate is not reasonable under section 10701a of such title. (b)Any rate described in subsection (a) of this section— (1) which is not challenged in a complaint" }, { "docid": "6961997", "title": "", "text": "later, Congress found that the railroad industry was still plagued by the same financial problems that faced it in 1976. Deregulation of railroad rate-set ting under the 4R Act was not proceeding quickly enough. Congress enacted the Staggers Rail Act of 1980, making dramatic changes designed to give carriers the freedom to set competitive rates determined mainly by market forces. Section 201 of the Act establishes the basic premise of deregulation: “(a) Except as [otherwise] provided ... a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission ... may establish any rate for transportation or other service provided by the carrier. “(b)(1) If the Commission determines, under section 10709 of this title, that a rail carrier has market dominance over the transportation to which a particular rate applies, the rate established by such carrier for such transportation must be reasonable.” 49 U.S.C.A. § 10701a(a), (b) (1983). Section 202 of the Act amends the application of the “market dominance” concept so as to free more railroad traffic from rate regulation. See id. § 10709(d). Section 203 creates a permissible zone of rate flexibility, within which rate increases enjoy a qualified immunity from reasonability challenges. Id. § 10707a. The Staggers Act also institutes a major reallocation of regulatory authority between the federal and state governments. Previously, a dual jurisdictional system of regulation governed rate-setting by interstate rail carriers. The ICC exercised plenary jurisdiction over rail transportation between different states and between the United States and other countries. See 49 U.S.C.A. § 10501(a) (1983). Section 10501(b) of title 49 specifically prohibited ICC jurisdiction over rail transportation “entirely in a State”, and primary jurisdiction over intrastate rates and services remained in the individual state regulatory commissions. Section 10501(c) provided that, unless a state requirement conflicted with an order of the ICC or was expressly prohibited by the Interstate Commerce Act, the authority granted the ICC by Congress “does not affect the power of a State, in exercising its police power, to require reasonable intrastate transportation by carriers providing transportation subject to the jurisdiction of the Commission”. In connection with this" }, { "docid": "3626539", "title": "", "text": "subsequent testimony from McCarty witnesses Cecil Brennan and Robert L. Hines, who specified that the dispute focused on rates for Montana’s export traffic in wheat and barley. See McCarty I, 4 I.C.C.2d at 264 n. 6 (citing Hines Verified Statement of 3/27/81 at 2). In addition, as with the Montana Department of Agriculture claims, the shippers’ analysis of market dominance matched the finding that they challenged only rates on export grain sent to the designated Pacific Coast ports. We do not find the Commission’s reading of the McCarty complaint arbitrary or capricious. III. Propriety of the R/VC Methodology Burlington’s sole claim is that the Commission, in determining reasonable rates, erred by dropping the Constrained Market Pricing (“CMP”) methodology that it adopted in the early 1980s in favor of another methodology (“R/VC”) that limits a railroad to charging rates for disputed traffic that yield no higher a ratio of revenue-to-variable-cost than the R/VC ratio of certain “benchmark” traffic used for comparison. First we trace the origin and theory behind the Commission’s adoption of CMP in the wake of the rail regulation reform legislation of 1976 and 1980. Then we consider the character of R/VC and the strength of the Commission’s explanation for adopting it in this case. With the Railroad Revitalization and Regulatory Reform Act of 1976 (the “4R Act”) and the Staggers Rail Act of 1980, Congress moved to “allow[] the forces of the marketplace to regulate railroad rates wherever possible.” H.Conf.Rep. No. 1430, 96th Cong., 2d Sess. at 89 (Sept. 29, 1980) [U.S.Code Cong. & Admin.News pp. 3978, 4120, 4121]. Recognizing that in many markets the growth of transportation alternatives had reduced the likely need for regulatory protection against rail monopoly, see S.Rep. No. 499, 94th Cong., 2d Sess. at 11 (Nov. 26, 1975), [U.S.Code Cong. & Admin.News pp. 14, 24, 25]. Congress in the 4R Act limited the ICC’s jurisdiction to situations where a carrier had “market dominance.” See Pub.L. No. 94-210, § 202(c)(i), 90 Stat. 35-36 (Feb. 5, 1976) (codified at 49 U.S.C. § 10709(c)). In Staggers, Congress set a quantitative floor for the Commission’s jurisdiction over" }, { "docid": "2079624", "title": "", "text": "Market Dominance and Related Considerations, 45 Fed.Reg. 3353 (1980). While the Commission was considering comments on that proposal, Congress passed the Staggers Act, which significantly furthered the deregulation of rail rates that had begun with the Reform Act of 1976. Section 202 of the Staggers Act directly superseded the Commission’s cost presumption. It required a finding of no market dominance when a rail carrier established that its challenged rate would yield less than a given percent of variable cost, 49 U.S.C. § 10709(d)(2), and further provided that a finding that a rate is equal to or greater than the statutory variable cost percentage “does not establish a presumption” of market dominance, 49 U.S.C. § 10709(d)(4). In December of 1980 the Commission withdrew its revised market dominance regulations, proposed in Ex Parte No. 320 (Sub-No. 1), and initiated Ex Parte No. 320 (Sub-No. 2) to reconsider the revision in light of the Staggers Act. Market Dominance Determinations and Considerations of Product Competition, 45 Fed.Reg. 83342 (1980). After a period for comments and review, the Commission, on July 8, 1981, revoked its market dominance presumptions and substituted a new set of market dominance guidelines. Ex Parte No. 320 (Sub-No. 2), 365 I.C.C. 118. Concluding that the presumptions did not necessarily reflect the degree of railroad market power and therefore yielded inaccurate market dominance determinations, the Commission created broad new guidelines that focus on four forms of competition: intermodal, intramo-dal, product, and geographic. Id. at 120. The burden remained on complainants to prove a lack of effective competition. Id. at 132. The question before us in this case is what market dominance standards should be applied in proceedings under § 229 of the Staggers Act. Section 229 established that any rail rate in effect on the effective date of the Act “shall be deemed to be lawful and may not thereafter be challenged”, but with the “savings provision” that “any interested party alleging that the rail carrier has market dominance over the transportation to which the rate applies ... and that the rate is not reasonable” could file a complaint with the ICC" }, { "docid": "1938834", "title": "", "text": "other carriers or modes of transportation for the transportation to which a rate applies.” 49 U.S.C. § 10709(a) (1982) (emphasis added). A carrier is presumed under the statute, moreover, not to enjoy market dominance, and hence, to be subject to “effective competition” with respect to a particular service, if the revenue it obtains from the rates therefor does not exceed by more than a specified percentage its variable costs in providing the service. 49 U.S.C. § 10709(d)(2) (1982); see Coal Exporters Ass’n v. United States, 745 F.2d 76, 97 (D.C.Cir.1984); Arkansas Power & Light Co. v. ICC, 725 F.2d 716, 719 (D.C.Cir.1984); Ford Motor Co. v. ICC, 714 F.2d 1157, 1159 (D.C.Cir.1983). The purpose of the Staggers Act in granting this rate-making freedom to non-dominant carriers was to “end for most rail service decades of ICC control over maximum rates and to permit carriers not having market dominance to set rates in response to their perception of market conditions.” Arkansas Power & Light, 725 F.2d at 719 (quoting Bessemer & L.E. R.R. v. ICC, 691 F.2d 1104, 1108 (3d Cir.1982)); see H.R.Conf.Rep. No. 1430, supra, at 80, U.S. Code Cong. & Admin.News 1980, p. 4111 (provisions of Staggers Act granting railroads “rate freedom” “continues the policy started under the Railroad Revitalization and Regulatory Reform Act of 1976 of substantially eliminating rate regulation of railroads where there is effective competition”). As the Third Circuit has succinctly stated, “[f]or railroads subject to effective competition from other rail carriers or modes of transportation Congress opted to deregulate rates.” Consolidated Rail Corp. v. United States, 812 F.2d 1444, 1449 (3d Cir.1987). More generally, “[t]he primary goal of the Act was to revitalize the railroad industry by reducing or eliminating regulatory burdens. Faced with railroad bankruptcies and the need to assure railroads of adequate revenues, Congress revamped the structure of railroad regulation in order to restore the industry to health.” Coal Exporters Ass’n, 745 F.2d at 80-81. At the same time, Congress recognized the need for regulatory intervention “where there is an absence of effective competition and where rail rates provide revenues which exceed the" }, { "docid": "1938833", "title": "", "text": "was intended to be an alternative means of obtaining rate relief, requiring the Commission affirmatively to move the national rail system toward a regime more like perfect competition, with the attendant benefits of marginal cost ratemaking. Captive shippers that are unable to make the case for rate regulation by demonstrating market dominance, on this view, would be able to secure the benefits of effective rail competition through a regulatory order requiring a non-market dominant carrier with some unspecified degree of “market power” to provide competitive access to another carrier. It is implicit in this theory that a carrier’s ability to charge a captive shipper rates above the levels that would obtain if additional carrier service were introduced offends the competition policies of the Staggers Act or is otherwise anticompetitive. We believe that proposition is inconsistent with Congress’s intent to deregulate railroad ratemaking in the absence of a mar ket dominant carrier. A brief examination of the statute confirms this conclusion. Under the Staggers Act, “market dominance” is defined as “an absence of effective competition from other carriers or modes of transportation for the transportation to which a rate applies.” 49 U.S.C. § 10709(a) (1982) (emphasis added). A carrier is presumed under the statute, moreover, not to enjoy market dominance, and hence, to be subject to “effective competition” with respect to a particular service, if the revenue it obtains from the rates therefor does not exceed by more than a specified percentage its variable costs in providing the service. 49 U.S.C. § 10709(d)(2) (1982); see Coal Exporters Ass’n v. United States, 745 F.2d 76, 97 (D.C.Cir.1984); Arkansas Power & Light Co. v. ICC, 725 F.2d 716, 719 (D.C.Cir.1984); Ford Motor Co. v. ICC, 714 F.2d 1157, 1159 (D.C.Cir.1983). The purpose of the Staggers Act in granting this rate-making freedom to non-dominant carriers was to “end for most rail service decades of ICC control over maximum rates and to permit carriers not having market dominance to set rates in response to their perception of market conditions.” Arkansas Power & Light, 725 F.2d at 719 (quoting Bessemer & L.E. R.R. v. ICC, 691" }, { "docid": "6961996", "title": "", "text": "this legislation offered hope for improvement in the Northeast Corridor, by 1976 Congress recognized the necessity for introducing substantial nationwide changes in the regulation of railroad rates and service conditions. The railroad industry was in serious financial trouble, largely because the industry had become overregulated while competing modes of transportation remained for the most part unregulated. Accordingly, Congress inaugurated a policy of deregulating railroad rate-setting by enacting the Railroad Revitalization and Regulatory Reform Act of 1976 (4R Act), Pub.L. No. 94-210, 90 Stat. 31 (codified as amended at 45 U.S.C.A. §§ 801-855 (1983)). Since the enactment of the Interstate Commerce Act in 1887, the ICC had used the “just and reasonable” standard to review the rates of carriers subject to its jurisdiction. Under the 4R Act, the ICC could not find a railroad rate unjust or unreasonable unless the Commission had first determined that the carrier could exclude effective competition to such an extent that the carrier could be said to have “market dominance”. See 4R Act § 202(b), 90 Stat. at 35. Four years later, Congress found that the railroad industry was still plagued by the same financial problems that faced it in 1976. Deregulation of railroad rate-set ting under the 4R Act was not proceeding quickly enough. Congress enacted the Staggers Rail Act of 1980, making dramatic changes designed to give carriers the freedom to set competitive rates determined mainly by market forces. Section 201 of the Act establishes the basic premise of deregulation: “(a) Except as [otherwise] provided ... a rail carrier providing transportation subject to the jurisdiction of the Interstate Commerce Commission ... may establish any rate for transportation or other service provided by the carrier. “(b)(1) If the Commission determines, under section 10709 of this title, that a rail carrier has market dominance over the transportation to which a particular rate applies, the rate established by such carrier for such transportation must be reasonable.” 49 U.S.C.A. § 10701a(a), (b) (1983). Section 202 of the Act amends the application of the “market dominance” concept so as to free more railroad traffic from rate regulation. See id." }, { "docid": "3626540", "title": "", "text": "wake of the rail regulation reform legislation of 1976 and 1980. Then we consider the character of R/VC and the strength of the Commission’s explanation for adopting it in this case. With the Railroad Revitalization and Regulatory Reform Act of 1976 (the “4R Act”) and the Staggers Rail Act of 1980, Congress moved to “allow[] the forces of the marketplace to regulate railroad rates wherever possible.” H.Conf.Rep. No. 1430, 96th Cong., 2d Sess. at 89 (Sept. 29, 1980) [U.S.Code Cong. & Admin.News pp. 3978, 4120, 4121]. Recognizing that in many markets the growth of transportation alternatives had reduced the likely need for regulatory protection against rail monopoly, see S.Rep. No. 499, 94th Cong., 2d Sess. at 11 (Nov. 26, 1975), [U.S.Code Cong. & Admin.News pp. 14, 24, 25]. Congress in the 4R Act limited the ICC’s jurisdiction to situations where a carrier had “market dominance.” See Pub.L. No. 94-210, § 202(c)(i), 90 Stat. 35-36 (Feb. 5, 1976) (codified at 49 U.S.C. § 10709(c)). In Staggers, Congress set a quantitative floor for the Commission’s jurisdiction over rates, and established that the Commission could not find market dominance if the disputed rate yielded an R/VC ratio lower than a specified figure — which started at 160% in the first year, rose in increments of 5% a year, and stabilized at 180% in the fifth. See 49 U.S.C. § 10709(d)(2)(A)-(E). Even where market dominance was shown, the Commission was to consider the railroads’ need to earn adequate revenue: [i]n determining whether a rate established by a rail carrier is reasonable ... the Commission shall recognize the policy of this title that rail carriers shall earn adequate revenues, as established by the Commission under section 10704(a)(2) of this title. 49 U.S.C. § 10701a(b)(3). Congress explained that the change was in response to the failure of its previous efforts to require the Commission to give attention to revenue adequacy: Previous admonitions by the Congress that the Commission assist carriers in earning adequate revenue levels (49 U.S.C. § 10704) have not achieved their goals. As a result, the Committee is establishing a more straight forward mandate." }, { "docid": "5997311", "title": "", "text": "Worthington, 225 U.S. 101, 108-10, 32 S.Ct. 653, 655-56, 56 L.Ed. 1004 (1912). . The C & O tariff applicable prior to October 1, 1980 prescribed rates of $2.91 and $3.79 for intrastate shipment of metallurgical coal from Omar and Beckley, respectively. Between October 1, 1980 and July 1, 1981, C & O implemented six rate increases pertaining to fuel surcharges, cost recovery increases, and general rate adjustments. These rate increases were authorized by section 214(b)(6) of the Staggers Act, 49 U.S.C. § 11501(b)(6) (Supp. V 1981), prohibiting any state from exercising jurisdiction over general rate increases, inflation-based rate increases, and fuel adjustment surcharges approved by the Commission. . National Steel Corp., Amherst Coal Co., and the Eastern Coal Transportation Conference also protested the August 21 tariff. National Steel later negotiated a “mutually satisfactory compromise” rate contract with C & O as authorized by section 208(a) of the Act, 49 U.S.C. § 10713 (Supp. V 1981), and withdrew its protest. Amherst Coal and the Eastern Coal Transportation Conference withdrew their protests on December 1 and November 16 respectively. . “Market dominance” is the “absence of effective competition from other carriers or modes of transportation for the transportation to which a rate applies.” 49 U.S.C. § 10709(a) (Supp. V 1981). . “Variable costs” are the direct costs of labor and material incurred for each unit of coal transported. See Ex parte No. 347, Coal Rate Guidelines — Nationwide, 364 I.C.C. 360, 364 (1980); Atchison, T. & S.F. Ry. v. United States, 606 F.2d 442, 446 (4th Cir.1979). Rail Form A is used to calculate the average cost of an average railroad car in conventional service. See San Antonio, Tex. v. United States, 631 F.2d 831, 835 n. 9 (D.C.Cir.1980). The form does not, however, allow for the calculation of the costs of particular shipments of coal. For this purpose certain adjustments to the RFA must be made. . See Ex parte 270 (Sub-No. 4), Investigation of Railroad Freight Rate Structure — Coal, 345 I.C.C. 71 (1974). The Ex parte 270 adjustments reduce switching costs per carload by 75 percent at origin" }, { "docid": "8137367", "title": "", "text": "V 1981), the ICC issued a decision refusing to institute the requested rulemaking proceeding. Arkansas Power & Light Co., et al.—Petition to Institute Rulemaking Proceeding — Implementation of Long-Cannon Amendment to the Staggers Rail Act, 365 I.C.C. 983 (1982). Instead, the ICC announced that the Long-Cannon factors set out at 49 U.S.C. § 10707a(e)(2)(B) and (C) would be considered through case-by-case adjudication. The ICC then proceeded to outline the burden of proof it intended to impose on carriers and shippers in proceedings implicating those factors. Petitioners appeal the ICC decision not to institute rulemaking. A. The Statutory Scheme We begin our inquiry with a sketch of the statutory scheme. The Railroad Revitaliza tion and Regulatory Reform Act of 1976 (“4—R Act”) and the Staggers Rail Act of 1980 largely removed the nation’s railroads from federal regulatory control in markets where free competition could ensure reasonable railroad rates and practices. The 4 — R Act eliminated the jurisdiction of the ICC to find that a rate is unreasonably high unless the “proponent carrier” has “market dominance” over the relevant service. Pub.L. No. 94-210, § 202(b), 90 Stat. 31, 35 (codified as amended at 49 U.S.C. § 10709(c) (Supp. V 1981)). “Market dominance” was defined as “an absence of effective competition from other carriers or modes of transportation, for the traffic or movement to which a rate applies.” Id. (codified as amended at 49 U.S.C. § 10709(a) (Supp. V 1981)). “The effect of this provision [limiting jurisdiction] was to end for most rail service decades of ICC control over maximum rates and to permit carriers not having market dominance to set rates in response to their perception of market conditions.” Bessemer & Lake Erie Railroad v. ICC, 691 F.2d 1104, 1108 (3d Cir.1982), cert. denied, — U.S. —, 103 S. Ct. 2463, 77 L.Ed.2d 1340 (1983); see also Ford Motor Co. v. ICC, 714 F.2d 1157, 1158-59 (D.C.Cir.1983). Congress then quantified the threshold market dominance test in the Staggers Act, establishing a presumption against market dominance where a rail carrier’s revenues from the transportation at issue exceed variable cost by less than" }, { "docid": "5948357", "title": "", "text": "the protestant must establish the carrier has “market dominance over the transportation to which the rate applies.” § 10709(c). “Market dominance” is defined as “an absence of effective competition from other carriers or modes of transportation for the transportation to which a rate applies.” § 10709(a). Section 202(b) of the Reform Act requires the Commission to establish rules, standards and procedures to determine when a carrier possesses market dominance over a service rendered. This section requires the Commission to design such rules to “provide for a practical determination without administrative delay.” In response to this requirement, the Commission in a continuing proceeding, entitled Ex parte No. 320, Special Procedures for Findings of Market Dominance, promulgated the regulations now found at 49 C.F.R. § 1109.1 (1979). These regulations establish four rebuttable presumptions to aid the Commission in ascertaining whether market dominance exists. 49 C.F.R. § 1109.1(f) and (g). The rebuttable presumptions are (1) that “the rate in issue has been discussed, considered or approved upon a rate bureau agreement,” (2) that “the proponent carrier has handled 70 percent or more of the involved traffic or movement during the preceding year,” (3) that “the rate in issue exceeds the variable cost of providing the service by 60 percent or more,” and (4) that the “affected shippers or consignees have made a substantial investment in rail-related equipment or facilities which prevents or make impractical the use of another carrier or mode.” The Commission in the case at hand found none of these rebuttable presumptions to have been met, and concluded that no market dominance existed. Accordingly, it found that it had no jurisdiction to determine whether the rate was unreasonably high. CP&L attacks this finding, contending that each of the presumptions applies. CP&L made a second attack on the proposed rate under § 10741, alleging that the rate was discriminatory. Section 10741(a) states that a carrier “may not charge or receive from a person a different compensation (by using a special rate, rebate, drawback or other means) for a service rendered, or to be rendered, in transportation the carrier may perform under this" }, { "docid": "8137368", "title": "", "text": "over the relevant service. Pub.L. No. 94-210, § 202(b), 90 Stat. 31, 35 (codified as amended at 49 U.S.C. § 10709(c) (Supp. V 1981)). “Market dominance” was defined as “an absence of effective competition from other carriers or modes of transportation, for the traffic or movement to which a rate applies.” Id. (codified as amended at 49 U.S.C. § 10709(a) (Supp. V 1981)). “The effect of this provision [limiting jurisdiction] was to end for most rail service decades of ICC control over maximum rates and to permit carriers not having market dominance to set rates in response to their perception of market conditions.” Bessemer & Lake Erie Railroad v. ICC, 691 F.2d 1104, 1108 (3d Cir.1982), cert. denied, — U.S. —, 103 S. Ct. 2463, 77 L.Ed.2d 1340 (1983); see also Ford Motor Co. v. ICC, 714 F.2d 1157, 1158-59 (D.C.Cir.1983). Congress then quantified the threshold market dominance test in the Staggers Act, establishing a presumption against market dominance where a rail carrier’s revenues from the transportation at issue exceed variable cost by less than a designated percentage. See Pub.L. No. 96-448, § 202, 94 Stat. 1895, 1900 (codified at 49 U.S.C. § 10709(d) (Supp. V 1981)). Revenues equal to or greater than that percentage do not result in a presumption of market dominance but are to be examined individually. Id. Also in the Staggers Act, Congress created zones of rail carrier rate flexibility, in which even market dominant carriers may increase rates without ICC approval if the carriers’ revenues are found to be inadequate. Pub.L. No. 96-448, § 203(a), 94 Stat. 1895, 1901-04 (codified at 49 U.S.C. § 10707a (Supp. V 1981)). A rate subject to ICC jurisdiction may be challenged in either of two ways. Before the new rate goes into effect, the Commission may begin a proceeding, on its own initiative or on complaint of an interested party, to investigate the rate. 49 U.S.C. § 10707(a) (Supp. V 1981). After a rate goes into effect, the ICC may begin an investigation, on its own initiative or on complaint, into the reasonableness of the existing rate. 49 U.S.C." }, { "docid": "1580783", "title": "", "text": "inaccurate. A.T. Kearney Inc., A Study to Perform an In-Depth Analysis of Market Dominance And its Relationship to Other Provisions of the 4R Act, IX — 4-6 (1979). . Rail Market Dominance and Related Considerations, 45 Fed.Reg. 3353 (Proposed January 17, 1980). . 49 U.S.C.A. 10709(d)(2) (West Special Pamphlet 1982). The revenue/variable cost percentage threshold started at 160 percent in 1980 and increases each year, in five percent increments, to 180 percent in 1984. . Ex Parte No. 320 (Sub-No. 2), Market Dominance Determinations, 365 I.C.C. 118, 120-21 (1981). . Id. at 131. . That act provides: In making a determination under this section, the Commission shall find that the rail carrier establishing the challenged rate does not have market dominance over the transportation to which the rate applies if such rail carrier proves that the rate charged results in a revenue-variable cost percentage for such transportation that is less than— (A) 160 percent during the period beginning on the effective date of the Staggers Rail Act of 1980 and ending September 30, 1981; (B) 165 percent during the period beginning October 1, 1981, and ending September 30, 1982; (C) 170 percent during the period beginning October 1, 1982, and ending September 30, 1983; (D) 175 percent or the cost recovery percentage, whichever is less, during the period beginning October 1, 1983, and ending September 30, 1984; and (E) the cost recovery percentage, during each 12-month period beginning on' October 1, 1984. For purposes of subparagraphs (D) and (E) of this paragraph, the cost recovery percentage shall in no event be less than a revenue-variable cost percentage of 170 percent or more than a revenue-variable cost percentage of 180 percent. 49 U.S.C.A. § 10709(d)(2) (West Special Pamphlet 1982). . 365 I.C.C. at 122. . Id. . Id. at 123. . Id. at 124. . Id. . The Commission first liberalized contracting opportunities on its own initiative through the issuance of three notices in Ex Parte No. 358, Railroad Contract Rates, in 1978, 1979, and 1980. Ex Parte No. 358, Railroad Contract Rates, 45 Fed.Reg. 58189 (1978) (codified at 49 C.F.R." }, { "docid": "6228580", "title": "", "text": "BROWN, Circuit Judge: PPL Montana, LLC (PPL) filed a complaint with the Surface Transportation Board, alleging the rail rates charged by intervenor BNSF Railway Company (BNSF) were unreasonably high. The Board disagreed and dismissed the complaint. PPL now petitions for review. Finding no basis for upsetting the Board’s decision, we deny the petition. I When a shipper files a rate complaint, see 49 U.S.C. §§ 10704(b), 11701, the Board is charged with determining whether the carrier targeted by the complaint has “market dominance,” id. § 10707(b)— that is, whether there is “an absence of effective competition from other rail carriers or modes of transportation for the transportation to which a rate applies,” id. § 10707(a). If so, the carrier’s rate for the captive traffic must be “reasonable.” Id. § 10701(d)(1). If the Board determines the rate is unreasonable, see id. § 10707(c), it may prescribe the maximum rate that can be charged, id. § 10704(a)(1). The Board determines reasonableness according to the “constrained market pricing” (CMP) principles enunciated in COAL RATE GUIDELINES, NATIONWIDE, 1 I.C.C.2d 520, 1985 WL 56819 (1985) (|GUIDELINES), aff'd sub nom. Consol. Rail Corp. v. United States, 812 F.2d 1444 (3d Cir.1987). GUIDELINES indicates that CMP meets the Board’s “dual objectives of providing railroads the real prospect of attaining revenue adequacy while protecting captive coal shippers from ‘monopolistic’ pricing practices.” Id. at 524-25, 1985 WL 56819. CMP consists of three main constraints on a railroad’s rates: revenue adequacy, management efficiency, and stand-alone cost (SAC). Id. at 534-46,1985 WL 56819. A SAC analysis seeks to determine the lowest cost at which a hypothetical efficient carrier could provide service to the complaining shipper or a group of shippers that benefits from sharing joint and common costs. Id. at 528,1985 WL 56819; see also id. at 529, 1985 WL 56819 (“The stand-alone cost, as we define it here, approximates the full economic costs, including a normal profit, that need to be met for an efficient producer to provide service to the shipper(s) identified.”). The Board assumes away barriers to entry and exit so as to treat the otherwise non-competitive railroad" }, { "docid": "1938827", "title": "", "text": "could lawfully charge. This, in turn, they argue, effectively places on the complainant the onerous burden of proving that the respondent carrier is “market dominant” within the meaning of section 10709 of the Act—in essence, that the rates it charges the complainant exceed 180% of the carriers’ variable cost of providing the transportation—which triggers the Commission’s authority to prescribe reasonable rates. See 49 U.S.C. §§ 10709(a)-(c), 10701a(b)(l) (1982). And that, they argue, is inconsistent with the purpose of section 11103 specifically and the Staggers Act generally, viz. to emphasize enhanced competition rather than regulation as the guarantor shippers have against excessive rates. Midtec’s arguments fail to join issue with the Commission’s reasoning. The Commission clearly stated that “[t]o the extent that Midtec I ... stood for the proposition that market dominance is a jurisdictional prerequisite to obtaining relief in a competitive access controversy, that case is specifically overruled.” Midtec II, at 9. The Commission did say, however, that rate issues remain relevant in proceedings of this type, and as we have seen, it did express dismay at the lack of “numbers” in the evidence Midtec presented. But it also specifically stated that its need for rate evidence related to “rate issues ... other than maximum reasonableness,” viz. “whether access had been granted [by the C & NW] on reasonable terms.” Midtec II, at 9. It thus appears that the Commission contemplated that competitive access may be prescribed if the rate practices of a respondent carrier demonstrate that such relief is necessary to remedy or to prevent an act contrary to the competition policies of the Act or that is otherwise anticompetitive, even if the respondent carrier’s rates are not so high as to make it “market dominant” within the meaning of section 10701a(b)(l). Evidence concerning rate issues seems unavoidably relevant in the complaint proceedings now under review, if only because of the nature of Midtec’s claims. In its complaint, Midtec stated: Midtec’s principal competitors enjoy the benefits of vigorous rail competition. Most are served by at least two carriers. Thus, Midtec’s “captive status” on the [C & NW] subjects it" }, { "docid": "21097137", "title": "", "text": "GINSBURG, Chief Judge. BNSF Railway Co. petitions for review of an order of the Surface Transportation Board rejecting as unreasonable certain rates the railroad charged the Public Service Company of Colorado, d/b/a Xcel Energy, to ship coal from the Powder River Basin in Wyoming to Xcel’s electric generating plant in Colorado. BNSF argues first the Board should have dismissed the rate proceeding three years after the complaint was filed, pursuant to the limitation in 49 U.S.C. § 11701(c). In the alternative BNSF argues we should, for a number of reasons, set aside the Board’s order as arbitrary and capricious. We hold BNSF’s first argument is forfeit and its other arguments are unpersuasive, wherefore we deny its petition for review. I. Background With the passage of the Staggers Rail Act of 1980, the Congress limited regulation of railroad rates to markets in which a single carrier exercises “market dominance,” defined as “an absence of effective competition from other rail carriers or modes of transportation.” 49 U.S.C. §§ 10701(c)-(d), 10707(a). Furthermore, it provided in the ICC Termination Act of 1995 that the Surface Transportation Board may begin an investigation into the reasonableness of a carrier’s rates “only on [the] complaint” of an affected shipper. Id. § 11701(a). If the Board finds the carrier dominates the relevant market, then it must determine whether the rate charged the shipper is “reasonable.” Id. § 10701(d)(1). If the rate is “unreasonable,” id. § 10707(c), then the Board may prescribe the maximum lawful rate, id. § 10704(a)(1), and order the railroad to pay reparations to the complainant, id. § 11704(b). The Board is precluded, however, from finding market dominance and in turn regulating the rate if the revenue generated thereby does not exceed 180% of the carrier’s variable cost of service. Id. § 10707(d)(1)(A). The Board evaluates the “reasonableness” of rail rates in light of the standards promulgated by its predecessor, the Interstate Commerce Commission, see Coal Rate Guidelines, Nationwide, 1 I.C.C.2d 520 (1985), aff'd sub nom. Consol. Rail Corp. v. United States, 812 F.2d 1444 (3d Cir.1987). In the Coal Rate Guidelines the Commission adopted the" }, { "docid": "1580782", "title": "", "text": "the policies embodied in the 4-R Act.” Id. at 58. The Subcommittee on Oversight and Investigations of the Committee on Interstate and Foreign Commerce issued a report praising the Commission’s implementation of the market dominance regulations. See Committee Print 96-I.F.C. 40 (February, 1980). . In a report to Congress (ICC, The Impact of the 4R Act Railroad Ratemaking Provisions, October 5, 1977), the Commission analyzed, among other things, the impact of its market dominance regulations. That report concluded that approximately 50 percent of rail traffic would be market-dominant under the Commission’s presumptions, absent rebuttal evidence. Report at 51. Subsequently, the Commission staff directed a research project by a consultant to analyze the market dominance concept in operation. In a report issued in 1979, the consultants concluded, inter alia, that (1) because of the complexity of rail markets, general procedural rules must permit exceptions in individual circumstances; (2) very little rail traffic (under 5% long term, 10-15% short term) is market dominant if all transportation alternatives are considered; and (3) rebuttable presumption tests tend to be inaccurate. A.T. Kearney Inc., A Study to Perform an In-Depth Analysis of Market Dominance And its Relationship to Other Provisions of the 4R Act, IX — 4-6 (1979). . Rail Market Dominance and Related Considerations, 45 Fed.Reg. 3353 (Proposed January 17, 1980). . 49 U.S.C.A. 10709(d)(2) (West Special Pamphlet 1982). The revenue/variable cost percentage threshold started at 160 percent in 1980 and increases each year, in five percent increments, to 180 percent in 1984. . Ex Parte No. 320 (Sub-No. 2), Market Dominance Determinations, 365 I.C.C. 118, 120-21 (1981). . Id. at 131. . That act provides: In making a determination under this section, the Commission shall find that the rail carrier establishing the challenged rate does not have market dominance over the transportation to which the rate applies if such rail carrier proves that the rate charged results in a revenue-variable cost percentage for such transportation that is less than— (A) 160 percent during the period beginning on the effective date of the Staggers Rail Act of 1980 and ending September 30, 1981; (B)" } ]

[ { "docid": "303863", "title": "", "text": "do not raise 'substantial and material factual issues.’ This is not to say that a party cannot except to the inferences and conclusions drawn by the Regional Director, but that such disagreement, in itself, cannot be the basis for demanding a hearing. To request a hearing a party must, in its exceptions, define its disagreements and make an offer of proof to support findings contrary to those of the Regional Director. The Board is entitled to rely on the report of the Regional Director in the absence of specific assertions of error, substantiated by offers of proof. The purpose behind the rule which requires a hearing only when “substantial and material factual issues” are raised is to avoid lengthy and protracted proceedings, and eliminate unnecessary delays in certifying the results of an election. If a hearing is required to be held on all exceptions to an election or report of a Regional Director, it would unduly lengthen and prolong labor unrest, contrary to the very purposes of the National Labor Relations Act. The cases relied upon by respondent in support of its contention that it is entitled to a hearing, all deal with cases in which the court determined that ‘substantial and material factual issues’ were raised, and therefore held that the Board erred in not ordering a hearing. United States Rubber Company v. N. L. R. B., 373 F.2d 602 (C.A.5); N. L. R. B. v. Capital Bakers, Inc., 351 F.2d 45 (C.A.3); N. L. R. B. v. Joclin Mfg. Co., 314 F.2d 627 (C.A.2); N. L. R. B. v. Lord Baltimore Press, Inc., 300 F.2d 671 (C.A.4) ; N. L. R. B. v. Dallas City Packing Co., 230 F.2d 708 (C.A.5); N. L. R. B. v. Poinsett Lumber and Mfg. Co., 221 F.2d 121 (C.A. 4). In N. L. R. B. v. Sidran, 181 F.2d 671 (C.A.5),.cited by respondent, the Court could only have held that the Board erred in denying a hearing if ‘substantial and material factual issues’ were raised.” 379 F.2d at 178. We interpret this decision and the authorities cited as requiring the Board to" } ]

[ { "docid": "897202", "title": "", "text": "matters relating to representation proceedings. N. L. R. B. v. Muscogee Lumber Co., Inc., 5th Cir. 1973, 473 F.2d 1364, 1366. And thus, before this court can invalidate an election, the party objecting to the enforcement action must prove that union misconduct materially affected the results of the election, and its proof must be such as to show that the Board’s findings to the contrary lack substantial evidentiary support. N. L. R. B. v. Monroe Auto Equipment Co., 5th Cir. 1972, 470 F.2d 1329, 1333; N. L. R. B. v. Golden Age Beverage Co., 5th Cir. 1969, 415 F.2d 26, 30; N. L. R. B. v. White Knight Manufacturing Co., 5th Cir. 1973, 474 F.2d 1064, 1067. Even though the objecting party is not entitled to have the election set aside, he may still have a right to a full adversary hearing. Rules promulgated by the Board require an investigation if post-election objections are filed. See 29 C.F.R. § 102.69. The Regional Director is permitted to make an ex parte investigation, but if substantial and material factual issues are found to exist, a full hearing is required. N. L. R. B. v. Air Control Products of St. Petersburg, Inc., 5th Cir. 1964, 335 F.2d 245, 249; N. L. R. B. v. Skelly Oil Co., 8th Cir. 1973, 473 F.2d 1079, 1083. A full hearing is required in such cases, not because any statute commands it, but because the Board has promulgated rules requiring a hearing in those circumstances. N. L. R. B. v. Overland Hauling, Inc., 5th Cir. 1972, 461 F.2d 944. And the determination of whether the Company has raised a substantial and material factual issue is “a question of law and ultimately a question for the courts.” Luminator Division of Gulfton Industries, Inc. v. N. L. R. B., 5th Cir. 1972, 469 F.2d 1371, 1374. In order to secure a hearing, the objecting party must present a prima facie case warranting setting the election aside. United States Rubber Co. v. N. L. R. B., supra, 373 F.2d at 606. This means that there must be “specific evidence of" }, { "docid": "14768388", "title": "", "text": "initial year of certification would run from the date the Company commenced to bargain in good faith. From this order the Company has petitioned this Court for review, and the Board has cross-petitioned to have its order enforced. With respect to the Company’s contention that it was denied a hearing at the representation proceeding, it is now a well-settled principle that the Board need not hold hearings on objections arising out of an election unless it appears that the objections raised present “substantial and material factual issues.” 29 C.F.R. 102.69(c) (e). “This qualified right to a hearing is designed to resolve questions expeditiously preliminary to the establishment of the bargaining relationship. * * * ” N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 32 (5th Cir. 1969). The burden is on the party who seeks to overturn the result of an election, not upon the Board, to show with specific evidence that the election was not fairly conducted. N. L. R. B. v. Mattison Machine Works, 365 U.S. 123, 81 S.Ct. 434, 5 L.Ed.2d 455 (1961). That evidence must show “not only that the unlawful acts occurred, but also that they interfered with the employee’s exercise of free choice to such an extent that they materially affected the results of the election.” Golden Age, supra 415 F.2d at 30. To meet this burden the complaining party must supply prima facie evidence, presenting substantial and material factual issues which would warrant setting aside the election. N. L. R. B. v. Smith Industries, Inc., 403 F.2d 889 (5th Cir. 1968). Upon examination of the record we find that the Company did not meet its burden. A hearing is more than a mere formalistic gesture; if there is nothing to hear, a “hearing” is senseless and useless. N. L. R. B. v. Air Control Products of St. Petersburg, Inc., 335 F.2d 245, 249 (5th Cir. 1964). The Company also contends that a hearing should have been held in the unfair labor practice proceeding. Yet here the Company presented no new evidence or issues which it had not presented before" }, { "docid": "897201", "title": "", "text": "concluded that the Company’s request “raises no substantial issues warranting review.” A motion for reconsideration of the Board’s denial of the Company’s, request for review was likewise denied “as lacking in merit.” Shortly thereafter, the Union filed unfair labor practice charges alleging that the Company had refused to bargain in violation of §§ 8(a)(1) and (5) of the Act, complaint issued, the Company answered by denying the validity of the Union’s certification, the Board's general counsel moved for summary judgment, and the Board granted the motion, ordering the Company to bargain collec tively with the Union. The case has inexorably found its way to this Court. It will not end with us today, however, for although we do not set the election aside, we deny the Board’s application for enforcement and remand for a full adversary hearing to determine the extent to which the challenged Union conduct affected the results of the election. We begin our analysis of the Company’s contentions by noting that Congress has vested the Board with broad discretion in dealing with matters relating to representation proceedings. N. L. R. B. v. Muscogee Lumber Co., Inc., 5th Cir. 1973, 473 F.2d 1364, 1366. And thus, before this court can invalidate an election, the party objecting to the enforcement action must prove that union misconduct materially affected the results of the election, and its proof must be such as to show that the Board’s findings to the contrary lack substantial evidentiary support. N. L. R. B. v. Monroe Auto Equipment Co., 5th Cir. 1972, 470 F.2d 1329, 1333; N. L. R. B. v. Golden Age Beverage Co., 5th Cir. 1969, 415 F.2d 26, 30; N. L. R. B. v. White Knight Manufacturing Co., 5th Cir. 1973, 474 F.2d 1064, 1067. Even though the objecting party is not entitled to have the election set aside, he may still have a right to a full adversary hearing. Rules promulgated by the Board require an investigation if post-election objections are filed. See 29 C.F.R. § 102.69. The Regional Director is permitted to make an ex parte investigation, but if substantial and" }, { "docid": "22235069", "title": "", "text": "an unfair labor practice. N. L. R. B. v. Blue Bell, Inc., supra; N. L. R. B. v. Nashua Mfg. Corp. of Tex as, 5 Cir., 218 F.2d 886, citing with approval N. L. R. B. v. Montgomery Ward & Co., 2 Cir., 192 F.2d 160; N. L. R. B. v. Arthur Winer, Inc., 7 Cir., 194 F.2d 370; Sax v. N. L. R. B., 7 Cir., 171 F.2d 769. But interrogation becomes unlawful when it is a part of the means by which the employer’s hostility carries with it the purpose to retaliate against Union sympathizers and, by threat of job or other reprisals, coerce them into a vote of action which does not express their free will. The open threat to Hartley to shut down the plant, especially when coupled with comparable menacing predictions made to Hollinger, was ample, if believed, to sustain the conclusion that the employer was undertaking to discourage the employees in exercising rights secured to them by the Act. N. L. R. B. v. Rutter-Rex Mfg. Co., 5 Cir., 229 F.2d 816; N. L. R. B. v. Coats & Clark (Acworth Plant), supra; N. L. R. B. v. Denton, 5 Cir., 217 F.2d 567; N. L. R. B. v. Nabors, supra; N. L. R. B. v. Poultry Enterprises, Inc., supra; N. L. R. B. v. Nashua Mfg. Corp., supra; N. L. R. B. v. Williamson-Dickie Mfg. Co., supra. But the claim of an 8(a) (3) unlawful discharge of Ferguson, a shipping clerk, and Hollinger, a crane operator, stands quite differently. The finding of 8(a) (1) guilt does not automatically make a discharge an unlawful one or, by supplying a possible motive, allow the Board, without more, to conclude that the act of discharge was illegally inspired. Indeed, we have frequently sustained 8(a) (1) charges while rejecting those under 8(a) (3), N. L. R. B. v. Riverside Mfg. Co., supra; N. L. R. B. v. Williamson-Dickie Mfg. Co., supra; N. L. R. B. v. Goodyear Tire & Rubber Co., supra; N. L. R. B. v. Coats & Clark (Acworth Plant), supra; N. L. R. B." }, { "docid": "22909335", "title": "", "text": "N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 33 (5th Cir. 1969). Just as there was “nothing to hear” (N. L. R. B. v. Air Control Products, Inc., 335 F.2d 245, 249 (5th Cir. 1964)) on the Company’s objections in the representation proceeding, so there was “nothing to hear” on this issue in the unfair labor practice case. No new and material evidence, previously unavailable, was offered. In this situation the Board, applying its rules, has consistently and correctly refused to permit the relitigation in an unfair labor practice proceeding of “any issue which was, or could have been, raised in the representation proceeding”. 29 C.F.R. § 102.67(f). This policy has been sustained by the courts. Ñ. L. R. B. v. Tennessee Packers, Inc., 379 F.2d 172 (6th Cir.), cert. den., 389 U.S. 958, 88 S.Ct. 338 (1967); Amalgamated Clothing Workers of America v. N. L. R. B., 124 U.S.App.D.C. 365, 369-372, 365 F.2d 898, 902-905 (1966). Although of course “an adversary hearing must be held at some point in the process where genuinely contested factual issues are properly raised” (International Union of Electrical, Radio & Machine Workers, AFL-CIO v. N. L. R. B., 135 U.S.App.D.C. 355, 360, 418 F.2d 1191, at 1196 (1969), a hearing is not required where no such issues exist. Neither the statute nor the constitutional imperative of due process requires such an exercise in futility. It follows that the entry of summary judgment in the unfair labor practice case was proper. See N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26 (5th Cir. 1969); N. L. R. B. v. Air Control Products, Inc., 335 F.2d 245 (5th Cir. 1964). We do not consider that our conclusion on this point is inconsistent with N. L. R. B. v. Smith Industries, Inc., 403 F.2d 889 (5th Cir. 1968), on which the Company relies. In that case the court held that the employer had offered sufficient evidence to raise disputed issues of fact and make a hearing necessary. THE REMEDY The. Union is satisfied with the Board’s disposition of the case" }, { "docid": "8789231", "title": "", "text": "proceedings so that it may produce the evidence upon which it relies for consideration by the Board and for consideration by this court in proceedings to enforce or set aside the Board's order.” (p. 123). In another challenged ballot case, N. L. R. B. v. Joclin Mfg. Co., 314 F.2d 627 (2nd Cir. 1963), the Regional Director filed a report based on an ex parte investigation to which employer excepted. Again at the review stage and at the complaint stage the employer was denied the right to produce testimony. Citing and following N. L. R. B. v. Sidran (Cit. supra), the Court stated: “In consequence a court cannot properly enforce an order finding an employer guilty of an unwarranted refusal to bargain with a union certified in an election if it appears, with respect to challenges affecting the result, either that they were disposed of erroneously as a matter of law or that the employer raised ‘substantial and material factual issues’ under the Regulations and was denied a hearing that he seasonably requested.” (ppr. 631-632). See also N. L. R. B. v. Dallas City Packing Company, 230 F.2d 708 (5th Cir. 1956), and N. L. R. B. v. Lord Baltimore Press, Inc., 300 F.2d 671 (4th Cir. 1962). Both parties have recited the factual situation with regard to the challenged employee at length in briefs, and the Regional Director’s report discussed it in detail. This only substantiates our conclusion that this was “a substantial and material factual issue.” We are of the opinion, therefore, that both a proper application of the Board’s Regulations, and the requirements of due process demanded a hearing on the factual issues surrounding the employment of the challenged voter. The history of prior representation petitions, the disputed appropriate unit questions, and the closeness of the vote making the challenged ballot critical, all support the conclusion that a hearing on the challenged ballot was the only fair and proper method of procedure. Where all of these circumstances co-exist all procedural safeguards ought to be used. Only a hearing can supply this. As stated by Chief Justice Hughes" }, { "docid": "22909328", "title": "", "text": "such showing here, and the Board’s refusal to set aside the election because of alleged threats of physical violence was well within its discretion.” Here, as in the Golden Age Beverage case, the Company has not come forward with “specific evidence” that the “particular conduct complained of ‘created an environment of tension or coercion * * so related to the election as to have had a probable effect upon the employees’ actions at the polls.’ ” There was no evidence that the alleged misconduct was widespread, that any of the 276 employees who voted, other than the six persons affected, was even aware of the incidents, or that the incidents occurred in such proximity to the date of the election that they might have had any special significance to the other voters. In these circumstances the Acting Regional Director and the Board could reasonably find that “even assuming arguendo that the conduct occurred as alleged, such activity * * * was insufficient to create a general atmosphere of confusion or fear of reprisal which rendered impossible a free election.” See Intertype Co. v. N. L. R. B., 401 F.2d 41, 45-46 (4th Cir. 1968), cert. den., 393 U.S. 1049, 89 S.Ct. 686, 21 L.Ed.2d 691 (1969); N. L. R. B. v. Zelrich Co., 344 F.2d 1011, 1014-1015 (5th Cir. 1965); Shoreline Enterprises of America, Inc. v. N. L. R. B., 262 F.2d 933, 942, 69 A.L.R.2d 1174 (5th Cir. 1959). The Company’s conclusory allegation, unsupported by evidence, that in certain instances the Company’s employees who were alleged to have made threats or promises were “speaking for the Union” was not sufficient to demonstrate, even prima facie, that the Union was responsible for their utterances. See Intertype v. N. L. R. B., 401 F.2d 41, 45-46 (4th Cir. 1968), cert. den., 393 U.S. 1049, 89 S.Ct. 686 (1969); Manning, Maxwell & Moore, Inc. v. N. L. R. B., 324 F.2d 857, 858 (5th Cir. 1963); N. L. R. B. v. Dallas General Drivers, Warehousemen & Helpers, Local No. 745, 264 F.2d 642, 648 (5th Cir.), cert. den., 361 U.S. 814, 80" }, { "docid": "22909326", "title": "", "text": "N .L. R. B. v. Capital Transit Co., 95 U.S.App.D.C. 310, 311, 221 F.2d 864, 866 n.4 (1955). The only question presented on judicial review is whether the Board has reasonably exercised its discretion in the matter. Pepperell Mfg. Co. v. N. L. R. B., 403 F.2d 520, 522 (5th Cir. 1968), cert. den., 395 U.S. 922, 89 S.Ct. 1774, 23 L.Ed.2d 238 (1969). Further, “the burden is on the party objecting to the conduct of the representation election to prove that there has been prejudice to the fairness of the election.” Southwestern Portland Cement Co. v. N. L. R. B., 407 F.2d 131, 134 (5th Cir. 1969). And the objecting party must produce “specific evidence” that the election was improperly conducted and that the acts complained of “interfered with the employees’ exercise of free choice to such an extent that they materially affected the results of the election.” N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 30 (5th Cir. 1969). In short, there is a heavy burden on the Company in showing that the election was improper. We find that the Board acted well within its discretion in finding that the Company did not meet this burden. The opinion and reasoning of the Circuit Court of Appeals for the Fifth Circuit in N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 32 (5th Cir. 1969) are dispositive here. In that case the Court said: “This conclusion [of the Regional Director] was not unreasonable inasmuch as the ultimate question here is not whether any improprieties occurred during the campaign, but whether, in the circumstances, the particular conduct complained of ‘created an environment of tension or coercion such as to preclude employees from exercising a free choice. For conduct to warrant setting aside an election, not only must that conduct be coercive, but it must be so related to the election as to have had a probable effect upon the employees’ actions at the polls.’ N. L. R. B. v. Zelrich Company, 344 F.2d 1011, 1015 (5th Cir. 1965). The Company has made no" }, { "docid": "3251306", "title": "", "text": "forth with specific facts constituting a prima facie case of election irregularities. N. L. R. B. v. O. K. Van Storage, Inc., 297 F.2d 74, 75 (5th Cir. 1961); N. L. R. B. v. Air Control Products of St. Petersburg, Inc., 335 F.2d 245, 250 (5th Cir. 1964). No purpose would be served by relating, in full, the alleged incidents of coercion. After a full review of the record this Court is of the opinion that the Regional Director’s conclusions in regard to the threats are neither unreasonable nor unsupportable on the record as a whole. The record reveals that the alleged coercion took place some three weeks prior to the election. There is no evidence that the employees making the threats were acting for the Union. See Shoreline Enterprises of America, Inc. v. N. L. R. B., 262 F.2d 933, 69 A.L.R.2d 1174 (5th Cir. 1959). Furthermore, the Company has failed to offer any evidence that the incidents created an “atmosphere of fear of reprisal such as to render a free expression of choice impossible.” Manning, Maxwell & Moore, Inc. v. N. L. R. B., 324 F.2d 857, 858 (5th Cir. 1963). We now turn to the Company’s objection, as filed, which involves a claim of misrepresentation of obtainable benefits contained in a letter distributed by the Union. The following are the pertinent portions of the letter distributed by the Union prior to the election and objected to by the Company as misleading: “* * * For your consideration I have enclosed a page from one of many contracts that the Teamsters now have in force with the same type companies that you work for now. “Look over these wages and see for yourself just what you should be getting and compare them with your present wages; and then, ask that old boss if he really has your welfare in mind, or does he want to keep you in the dark. Sincerely, TEAMSTER LOCAL NO. 270 /s/ Eugene Brown Business Agent” Attached thereto was a wage scale agreement taken from a collective bargaining contract. The letter concluded: “P.S. This" }, { "docid": "897216", "title": "", "text": "undisputed and the matter presented is a question of law, N. L. R. B. v. Cactus Drilling Co., 5th Cir. 1972, 455 F.2d 871, 873, fn. 10, or where the effect of the misconduct is apparent on the record, National Cash Register Co. v. N. L. R. B., 5th Cir. 1969, 415 F.2d 1012, 1015. See N. L. R. B. v. Monroe Auto Equipment Co., supra, 470 F.2d at 1331, fn. 2; N. L. R. B. v. Golden Age Beverage Co., supra, 415 F.2d at 33, fn. 6. . We note here that the Regional Director’s finding that the misrepresentation does not constitute a substantial departure from what it believed the truth to be has no support in the record. But more important, whether the Union intended to misrepresent a material fact has never been a part of the test. Hollywood Ceramics Co., 140 NLRB 221, 51 LRRM 1600 (1962) ; see N.L.R.B. v. Houston Chronicle Publishing Company, 5th Cir. 1962, 300 F.2d 273, 278. The Board now admits that the Regional Director was incorrect in concluding that the Union had unfair labor practice charges pending at the time the handbill was distributed. The Union did not file unfair labor practice charges as to two Bes-Pak employees until two days after the Company election. 3ven if intent were a proper consideration, which it is not, we cannot understand how it could help the Union’s position, for we would assume, without evidence to the contrary, that the Union would not have prepared this handbill with only one message unless it intended the handbill to have a material effect on the election. . See also United States Rubber Co. v. N.L.R.B., supra, 373 F.2d at 606." }, { "docid": "22237931", "title": "", "text": "to him if he did not support the Union. But, according to the employee, this was later explained by the unknown individual in terms of pay scales. . We deem it immaterial that the incidents cited by the Company involved rank-and-file employees, none of whom were alleged to be Union officials. Though the conduct in question cannot be attributed to the Union absent proof that it was authorized, participated in, condoned, ratified, or adopted by Union officials, N. L. R. B. v. Dallas General Drivers, Warehousemen & Helpers, Local No. 745, 264 F.2d 642, 648 (5th Cir.) cert. denied, 361 U.S. 814, 80 S.Ct. 54, 4 L.Ed.2d 61 (1959), such conduct will nevertheless warrant setting aside the election if it disrupted the voting procedure or destroyed the atmosphere necessary to the exercise of a free choice in the representation election. Hometown Foods, Inc. v. N. L. R. B., 379 F.2d 241 (5th Cir. 1967). Again we emphasize that the Company failed to make the necessary proof here. . In an abundance of caution, we note that our decision is in no wise inconsistent with the outflux of recent cases decided by this Court where the Board’s order to bargain has been denied enforcement because of the failure to provide the objecting party a hearing on its objections. See Electra Manufacturing Co. v. N. L. R. B., 408 F.2d 570 ( 5th Cir. 1969) (misrepresentation of material facts at a time when the Company was prevented from making an effective rebuttal) ; Tyler Pipe and Foundry Company v. N. L. R. B., 406 F.2d 1272 (5th Cir. 1969) (semble); N. L. R. B. v. Monroe Auto Equipment Company, Hartwell Division, 406 F.2d 177 (5th Cir. 1969) (biased and improper conduct of N. L. R. B. agents); N. L. R. B. v. Genesco, Inc., 406 F.2d 393 (5th Cir. 1969) (misrepresentation of material facts at a time when the Company was prevented from making an effective rebuttal); N. L. R. B. v. Smith Industries, Inc., 403 F.2d 889 (5th Cir. 1968) (substantial disputed facts); Howell Refining Company v. N. L. R. B.," }, { "docid": "3251305", "title": "", "text": "the objections both during the Representation proceeding and the Unfair Labor Practice proceeding. The Regional Director concluded that the objections were without merit and certified the Union. The Board denied the Company’s request for review and adopted the Regional Director’s findings. The Company refused to bargain and was found in violation of § 8(a) (5) and (1) of the Act. In regard to the alleged Union threats, the Regional Director assumed the truth of the allegations and concluded that the events could not be attributed to the Union, and that they were too isolated to have destroyed the atmosphere requisite to conducting a free election. In reviewing Board determinations it is well settled that this Court’s primary function is to determine whether the Board has violated the standard of “reasonableness” in the exercise of its wide discretion. See Pepperell Manufacturing Co. v. N. L. R. B., 403 F.2d 520, 522 (5th Cir. 1968). It is also well settled that in order to be entitled to a hearing on specific objections, the objecting party must come forth with specific facts constituting a prima facie case of election irregularities. N. L. R. B. v. O. K. Van Storage, Inc., 297 F.2d 74, 75 (5th Cir. 1961); N. L. R. B. v. Air Control Products of St. Petersburg, Inc., 335 F.2d 245, 250 (5th Cir. 1964). No purpose would be served by relating, in full, the alleged incidents of coercion. After a full review of the record this Court is of the opinion that the Regional Director’s conclusions in regard to the threats are neither unreasonable nor unsupportable on the record as a whole. The record reveals that the alleged coercion took place some three weeks prior to the election. There is no evidence that the employees making the threats were acting for the Union. See Shoreline Enterprises of America, Inc. v. N. L. R. B., 262 F.2d 933, 69 A.L.R.2d 1174 (5th Cir. 1959). Furthermore, the Company has failed to offer any evidence that the incidents created an “atmosphere of fear of reprisal such as to render a free expression of choice" }, { "docid": "22909330", "title": "", "text": "S.Ct. 54, 4 L.Ed.2d 61 (1959). THE DENIAL OF A HEARING The Company argues that hearings were unlawfully denied, both during the representation proceeding and during the unfair labor practice proceeding, when its objections were dismissed pursuant to a motion granting partial summary judgment. It is clear that there is no right to a post-election hearing in a representation proceeding. International Union of Electrical, Radio & Machine Workers, AFL-CIO v. N. L. R. B., 135 U.S.App.D.C. 355, 360, 418 F.2d 1191, 1196 (1969); N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 32 (5th Cir. 1969). Rather the Board's rules and regulations provide only that such hearings must be held when the objections raise “substantial and material factual issues” which cannot be resolved on the basis of administrative investigation without a hearing. 29 C.F.R. § 102.69 (c). This provision “is designed to resolve expeditiously questions preliminary to the establishment of the bargaining relationship and to preclude the opportunity for protracted delay of certification of the results of representation elections.” N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 32 (5th Cir. 1969). See also International Union of Electrical, Radio & Machine Workers, AFL-CIO v. N. L. R. B., 135 U.S.App.D.C. 360, 361, 418 F.2d 1191, at 1196-1197 (1969); N. L. R. B. v. Tennessee Packers, Inc., 379 F.2d 172, 178 (6th Cir.), cert. den., 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967). That this qualified right of hearing satisfies all statutory and constitutional requirements is settled. N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 32 (5th Cir. 1969); N. L. R. B. v. Air Control Products, Inc., 335 F.2d 245, 249 (5th Cir. 1964). In order to be entitled to a post-election hearing on its objections, “the objector must supply the Board with specific evidence which prima facie would warrant setting aside the election, for it is not up to the Board staff to seek out evidence that would warrant setting aside the election.” United States Rubber Co. v. N. L. R. B., 373 F.2d 602, 606 (5th" }, { "docid": "16952176", "title": "", "text": "If the investigation itself reveals, as it did here, that material factual issues exist which can be resolved only by a hearing, then a hearing must be held; once the investigator discovers facts by his investigation it becomes immaterial that there was a pre-investigation failure to supply him with specific evidence of what he later discovered. The requirement of specific evidence is a guide to enable the investigator to discover the facts, not a procedural device that minimizes the impact of facts discovered. We are aware of the policy of avoiding lengthy and unnecessary hearings, expeditiously resolving questions preliminary to the establishment of the bargaining relationship, and avoiding dilatory tactics by those disappointed in the election returns. N. L. R. B. v. Douglas County Electric Membership Corp., supra; N. L. R. B. v. O. K. Van Storage, Inc., supra; N. L. R. B. v. Joclin Manufacturing Company, 314 F.2d 627 (2d Cir., 1963). But this policy cannot operate to deprive the employer of a hearing in circumstances where it is entitled thereto. The order of the Board is set aside and the case is remanded to the Board to first conduct a full hearing on objections numbered 8, 9, 10, 11 and 12 to the election, without limiting the evidence by considerations of when discovered or whether previously available, and thereafter to determine under appropriate rules, regulations and procedures the unfair labor practice charge. . With United Rubber, Cork, Linoleum and Plastic Workers of America, AFL-CIO. . The bargaining unit consists of employees at a tire proving ground, or test track, operated by the employer at Laredo, Texas. In the election there were 55 votes for the union, 42 against, and 3 challenged ballots which have never been counted. . The case is before us by a petition- of the employer for review of the decision of the Board finding it in violation of §§ 8(a) (1) and 8(a) (5) of the National Labor Relations Act (29 U.S.C.A. § 151 et seq.). The Board has cross-petitioned seeking enforcement of its order. The representation proceeding cannot come before us by direct" }, { "docid": "9335682", "title": "", "text": "8(a) (3) and (1) of the Act by discharging employees William E. Cannon, Clarence R. Litaker and Roy A. Marston because of their Union activities. It is well settled that the findings and conclusions of the Board, when supported by the record as a whole, will not be disturbed on appeal. 29 U.S.C. § 160(e). The primary function of this Court in reviewing Board decisions is a determination of whether the Board has exercised a “reasonable” discretion in light of the circumstances of the individual case. See Pepperell Manufacturing Co. v. N. L. R. B., 403 F.2d 520, 522 (5th Cir. 1968). The record herein reveals that Company supervisors interrogated numerous employees concerning their Union activities and sentiments, specifically asking whether they favored the Union, planned to vote for it, signed Union authorization cards or attended Union meetings. These inquiries are the type of “pointed questions” found coercive in N. L. R. B. v. Camco, Inc., 340 F.2d 803, 804-807 (5th Cir. 1965), cert. denied, 382 U.S. 926, 86 S.Ct. 313, 15 L.Ed.2d 1339. These interrogations were frequently accompanied by thinly veiled inducements or threats: thus, one foreman after his questioning had revealed that one Gillespie had signed a Union card, told him that a Superintendent had said “they would close down before they would operate under a union.” Such threats and inducements plainly violated Section 8(a) (1) of the Act. N. L. R. B. v. Coats & Clark, Inc., 231 F.2d 567, 569-570 (5th Cir. 1956); N. L. R. B. v. Camco, Inc., supra. As to the Company’s contention that the Examiner and Board should have believed its supervi sors' denials that these statements were made, it is well settled that credibility resolutions are peculiarly within the province of the Trial Examiner and the Board and entitled to affirmance unless inherently unreasonable or self-contradictory. N. L. R. B. v. Finesilver Mfg. Co., 400 F.2d 644, 645 (5th Cir. 1968). It is equally well settled that surveillance of a Union meeting by a company supervisor constitutes a violation of Section 8(a) (1) of the Act. N. L. R. B. v." }, { "docid": "897215", "title": "", "text": "voters that the crowd would “get” any employee who voted against the Union. The Company also contended that all four of its objections, considered cumulatively, destroyed requisite laboratory conditions. The Regional Director found no merit in these contentions, and the Board agreed. The Company has not sought review of objections (1) and (2), and thus we have no occasion to consider them. . The § 8(a) (1) and (5) cases are legion, and the reasoning behind the tortuous path to this Court has been explained many times before. N. L. R. B. v. Golden Age Beverage Co., 5th Cir. 1969, 415 F.2d 26, 28; N. L. R. B. v. Air Control Products of St. Petersburg, Inc., 5th Cir. 1964, 335 F.2d 245, 247 fn. 1; United States Rubber Co. v. N. L. R. B., 5th Cir. 1967, 373 F.2d 602, 604; Home Town Foods, Inc. v. N. L. R. B., 5th Cir. 1969, 416 F.2d 392, 393 fn. 1. . Remand for hearings on post-election objections has been deemed inappropriate where the operational facts are undisputed and the matter presented is a question of law, N. L. R. B. v. Cactus Drilling Co., 5th Cir. 1972, 455 F.2d 871, 873, fn. 10, or where the effect of the misconduct is apparent on the record, National Cash Register Co. v. N. L. R. B., 5th Cir. 1969, 415 F.2d 1012, 1015. See N. L. R. B. v. Monroe Auto Equipment Co., supra, 470 F.2d at 1331, fn. 2; N. L. R. B. v. Golden Age Beverage Co., supra, 415 F.2d at 33, fn. 6. . We note here that the Regional Director’s finding that the misrepresentation does not constitute a substantial departure from what it believed the truth to be has no support in the record. But more important, whether the Union intended to misrepresent a material fact has never been a part of the test. Hollywood Ceramics Co., 140 NLRB 221, 51 LRRM 1600 (1962) ; see N.L.R.B. v. Houston Chronicle Publishing Company, 5th Cir. 1962, 300 F.2d 273, 278. The Board now admits that the Regional Director was incorrect" }, { "docid": "11884700", "title": "", "text": "or “supervisors” under the Act. See Ross Porta-Plant, Inc. v. N. L. R. B. (5 Cir. 1968), 404 F.2d 1180, 1182; Northern Virginia Steel Corp. v. N. L. R. B. (4 Cir. 1962), 300 F.2d 168, 172; N. L. R. B. v. Security Guard Service (5 Cir. 1967), 384 F.2d 143, 149; N. L. R. B. v. Parma Water Lifter (9 Cir. 1954), 211 F.2d 258, 261, cert. denied, 348 U.S. 829, 75 S.Ct. 51, 99 L.Ed. 654; N. L. R. B. v. Swift & Co. (9 Cir. 1957), 240 F.2d 65, 66-67; N. L. R. B. v. Brown & Sharpe Mfg. Co. (1 Cir. 1948), 169 F.2d 331, 334. We rely on the Board’s expertise in this type of problem. On the whole record, the Board did not abuse its discretion, and its fact-finding was not clearly wrong. As to the employer’s second contention, we hold the Board properly found that the election was not impaired because certain nurses were permitted to vote subject to challenge. Such challenge procedures are part of a longstanding practice of the Board. The challenge procedures will not be disturbed except for an abuse of discretion. N. L. R. B. v. Corral Sportswear Company (10 Cir. 1967), 383 F.2d 961, 965; see Riverside Press, Inc. v. N. L. R. B. (5 Cir. 1969), 415 F.2d 281, 282-284, cert. denied, 397 U.S. 912, 90 S.Ct. 915, 25 L.Ed.2d 94. On the whole record, the employer never identified the nurses who allegedly engaged in union activity, or proved that nurses permitted to vote subject to challenge, who were later found to be supervisors, had participated in the union pre-election campaign, and that this had a coercive impact on the employees’ votes. Nor did the Board’s admittedly inaccurate statement in its April 14, 1969, Decision require the Board to accept the employer’s contentions that the “charge” nurses were confused and, as a consequence, refrained from voting. The Board’s official election notice, posted on the employees’ bulletin board, properly listed the nurses who were ineligible to vote. It did not list “charge” nurses as excluded. Any confusion as" }, { "docid": "22909331", "title": "", "text": "B. v. Golden Age Beverage Co., 415 F.2d 26, 32 (5th Cir. 1969). See also International Union of Electrical, Radio & Machine Workers, AFL-CIO v. N. L. R. B., 135 U.S.App.D.C. 360, 361, 418 F.2d 1191, at 1196-1197 (1969); N. L. R. B. v. Tennessee Packers, Inc., 379 F.2d 172, 178 (6th Cir.), cert. den., 389 U.S. 958, 88 S.Ct. 338, 19 L.Ed.2d 364 (1967). That this qualified right of hearing satisfies all statutory and constitutional requirements is settled. N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 32 (5th Cir. 1969); N. L. R. B. v. Air Control Products, Inc., 335 F.2d 245, 249 (5th Cir. 1964). In order to be entitled to a post-election hearing on its objections, “the objector must supply the Board with specific evidence which prima facie would warrant setting aside the election, for it is not up to the Board staff to seek out evidence that would warrant setting aside the election.” United States Rubber Co. v. N. L. R. B., 373 F.2d 602, 606 (5th Cir. 1967). Cf. N. L. R. B. v. Mattison Machine Works, 365 U.S. 123, 81 S.Ct. 434, 5 L.Ed.2d 455 (1961). The burden on the Company to show that the election was not fairly conducted is not met by “nebulous and declaratory assertions, wholly unspecified,” but only by “specific evidence of specific events from or about specific people.” United States Rubber Co. v. N. L. R. B., 373 F.2d 602, 606 (5th Cir. 1967). The acting Regional Director in his report assumed the truth of the Company’s proffered testimony in support of its objections but he found, as a matter of law, that the objection was “without merit.” In its exceptions to the report the Company merely objected to findings “without a hearing.” It now argues that its exceptions were sufficient to require the Board to hold an evidentiary hearing to reconsider the facts underlying the Acting Regional Director’s conclusions. But as we said in a recent case where similar arguments were made: “Mere reference to the principles set out above is sufficient to rebut" }, { "docid": "22909329", "title": "", "text": "impossible a free election.” See Intertype Co. v. N. L. R. B., 401 F.2d 41, 45-46 (4th Cir. 1968), cert. den., 393 U.S. 1049, 89 S.Ct. 686, 21 L.Ed.2d 691 (1969); N. L. R. B. v. Zelrich Co., 344 F.2d 1011, 1014-1015 (5th Cir. 1965); Shoreline Enterprises of America, Inc. v. N. L. R. B., 262 F.2d 933, 942, 69 A.L.R.2d 1174 (5th Cir. 1959). The Company’s conclusory allegation, unsupported by evidence, that in certain instances the Company’s employees who were alleged to have made threats or promises were “speaking for the Union” was not sufficient to demonstrate, even prima facie, that the Union was responsible for their utterances. See Intertype v. N. L. R. B., 401 F.2d 41, 45-46 (4th Cir. 1968), cert. den., 393 U.S. 1049, 89 S.Ct. 686 (1969); Manning, Maxwell & Moore, Inc. v. N. L. R. B., 324 F.2d 857, 858 (5th Cir. 1963); N. L. R. B. v. Dallas General Drivers, Warehousemen & Helpers, Local No. 745, 264 F.2d 642, 648 (5th Cir.), cert. den., 361 U.S. 814, 80 S.Ct. 54, 4 L.Ed.2d 61 (1959). THE DENIAL OF A HEARING The Company argues that hearings were unlawfully denied, both during the representation proceeding and during the unfair labor practice proceeding, when its objections were dismissed pursuant to a motion granting partial summary judgment. It is clear that there is no right to a post-election hearing in a representation proceeding. International Union of Electrical, Radio & Machine Workers, AFL-CIO v. N. L. R. B., 135 U.S.App.D.C. 355, 360, 418 F.2d 1191, 1196 (1969); N. L. R. B. v. Golden Age Beverage Co., 415 F.2d 26, 32 (5th Cir. 1969). Rather the Board's rules and regulations provide only that such hearings must be held when the objections raise “substantial and material factual issues” which cannot be resolved on the basis of administrative investigation without a hearing. 29 C.F.R. § 102.69 (c). This provision “is designed to resolve expeditiously questions preliminary to the establishment of the bargaining relationship and to preclude the opportunity for protracted delay of certification of the results of representation elections.” N. L. R." }, { "docid": "2696712", "title": "", "text": "N. L. R. B. v. United Parcel Service, Inc., 1 Cir., 317 F.2d 912, 914 (1963); N. L. R. B. v. Local 294, International Bros. of Teamsters, Etc., 2 Cir., 317 F.2d 746, 749 (1963). Furthermore, an employer’s general hostility to unions, without more, does not supply an unlawful motive as to a specific discharge. N. L. R. B. v. Atlanta Coca-Cola Bottling Company, 5 Cir., 293 F.2d 300, 304 (1961), rehearing denied 296 F.2d 896 (1961); Ore-Ida Potato Products, Inc., v. N. L. R. B., 9 Cir., 284 F.2d 542, 545-546 (1960); N. L. R. B. v. Redwing Carriers, Inc., 5 Cir., 284 F.2d 397, 402 (1960). An inference that a discharge of an employee was motivated by his union activity must be based upon evidence, direct or circumstantial, not upon mere suspicion, Osceola Co. Co-Op. Cream. Ass’n v. N. L. R. B., supra, 251 F.2d at 69; N. L. R. B. v. Montgomery Ward & Co., 8 Cir., 157 F.2d 486, 491 (1946); Schwob Manufacturing Company v. N. L. R. B., 5 Cir., 297 F.2d 864, 867 (1962); N. L. R. B. v. Western Bank & Office Supply Company, supra, 283 F.2d at 606, and the burden of proving an improper motive for discharge is upon the Board. N. L. R. B. v. Montgomery Ward & Co., supra, 157 F.2d at 491; N. L. R. B. v. Moore Dry Kiln Company, 5 Cir., 320 F.2d 30, 32-33 (1963); Lawson Milk Company v. N. L. R. B., supra, 317 F.2d at 760; Portable Electric Tools, Inc., v. N. L. R. B., 7 Cir., 309 F.2d 423, 426-427 (1962); Ore-Ida Potato Products, Inc., v. N. L. R. B., supra, 284 F.2d at 545-546. A painstaking examination of the evidence convinces us that the extent of Dworak’s union activity consisted of his signing of the authorization card; that the inference drawn by the Board that Dworak’s discharge was motivated by his union activity is based upon mere suspicion; and thus that, upon consideration of the record as a whole, there is not substantial evidence to support the Board’s finding that Dworak’s" } ]

[ { "docid": "22623683", "title": "", "text": "erred in rejecting the finding of the Secretary that Claimant was not precluded by his physical condition from holding any substantial gainful employment. If we find the District Court not to be in error on this point, we must then determine whether the findings substituted therefor by the District Court are properly supported by the evidence. United States v. Certain Interests in Property et al., 296 F.2d 264, Civil No. 8280, C.A., 4 Cir., Nov. 6, 1961. If there is substantial evidence in the record to support the finding of the Secretary, the District Court cannot set it aside. 42 U. S.C.A. § 405(g). If there is only a slight preponderance of the evidence on one side or the other, the Secretary’s finding must be affirmed. United States v. Certain Interests in Property et ah, supra. In this case, there are four elements of proof to be considered in making a finding of Claimant’s ability or inability to engage in any substantial gainful activity. These are: (1) the objective medical facts, which are the clinical findings of treating or examining physicians divorced from their expert judgments or opinion as to the significance of these clinical findings, (2) the diagnoses, and expert medical opinions of the treating and examining physicians on subsidiary questions of fact, (3) the subjective evidence of pain and disability testified to by Claimant, and corroborated by his wife and his neighbors, (4) Claimant’s educational background, work history, and present age. For the purpose of making a finding of fact on this issue, the fact finder must recognize the obvious interrelation of these elements of proof. The objective medical findings may show more or less clearly the existence of certain clinically determinable physical or mental impairments. However, a recitation of objective, clinical findings will seldom show, without more, the over-all effect of these impairments on a particular individual. This is a matter of medical judgment to be decided with reference to the individual’s general physical condition and the state of development of each of the defects. The expert medical opinion of treating or examining physicians on these subsidiary" } ]

[ { "docid": "23175347", "title": "", "text": "work. The AU also found that appellant had transferable work skills and concluded that appellant was not disabled pursuant to Rule 201.11 of Table No. 1, Appendix 2, Subpart P, Regulations No. 4. Appellant alleges the following on appeal: 1) the AU failed to give substantial weight to the opinion of the “treating” physician, Dr. Modzinski; 2) the AU improperly discounted evidence of debilitating pain; and 3) the AU erred in finding claimant to have “transferable skills” and that the vocational expert failed to properly identify jobs existing in significant numbers which claimant was capable of performing. Our review of the Secretary’s decision is limited to determining whether there is substantial evidence in the record to support the decision. A reviewing court “may not try the case de novo, nor resolve conflicts in the evidence, nor decide questions of credibility.” Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.1984). The Secretary is charged with finding the facts relevant to an application for disability benefits, and the Secretary’s findings, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). Substantial evidence means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Even if the court might arrive at a different conclusion, the decision must be affirmed if supported by substantial evidence. Lane v. Gardner, 374 F.2d 612, 616 (6th Cir.1967). In the case at bar, while we recognize the presence of some conflicting evidence in the record, we nevertheless find substantial evidence to support the Secretary’s determination that appellant failed to establish disability prior to the expiration of his insured status. Appellant argues that the AU failed to give substantial weight to the opinion of Dr. Modzinski. Appellant makes much of the fact that Dr. Modzinski was his treating physician and that he placed such significant limitations on his activities as to allow him to be considered totally disabled. He further argues that since Dr. Modzin-ski’s conclusions are supported by those of Drs. Maxim and Crawford, these combined medical" }, { "docid": "22949340", "title": "", "text": "of impairments in the Social Security Regulations. 20 C.F.R. Appendix to Sub-part P at 326 ff. Therefore, although there is conflicting evidence, and although we might have reached a different conclusion had we been the initial trier of fact, we hold that there is substantial evidence to support the Secretary’s determination. Gaultney next asserts that the Administrative Law Judge applied an improper legal standard in reaching his decision in that he failed to take into account the subjective testimony of Gaultney, his friends, and members of his family regarding the pain he suffers. If this claim were well founded, it would justify reversal or remand. Hayes v. Celebrezze, 5 Cir. 1963, 311 F.2d 648. It is well settled that pain alone can be disabling, even where its existence is unsupported by “objective medical, clinical or laboratory evidence.” Prewitt v. Gardner, 5 Cir. 1968, 389 F.2d 993. Furthermore, we have often held that the judge must consider subjective evidence of pain as testified to both by the claimant and by other lay witnesses. DePaepe v. Richardson, 5 Cir. 1972, 464 F.2d 92, 94, 99-100; Hayes v. Celebrezze, supra. However, we have never suggested that the subjective evidence should take precedence over conflicting objective medical testimony; nor have we ever held that all pain is disabling. The Ninth and Tenth Circuits have properly held that the inability to work without incurring some pain or discomfort is not necessarily disability. Mark v. Celebrezze, 9 Cir. 1965, 348 F.2d 289; Dvorak v. Celebrezze, 10 Cir. 1965, 345 F.2d 894. Therefore, the question of how much pain is disabling is for the Administrative Law Judge, whose task it is to resolve conflicts in the evidence. Richardson v. Perales, supra. Gaultney asserts that the Administrative Law Judge ignored the evidence of pain. ' However, we see no reason to question the Judge’s statement that he considered and weighed all of the demonstrative medical evidence, considered the diagnoses and expert medical opinions, weighed the testimony of the claimant as to his pain and discomfort on movement and activity, and the lay testimony from witnesses who testified at" }, { "docid": "14675179", "title": "", "text": "constitute substantial evidence to support an examiner’s decision adverse to the claimant. Denying the Secretary’s petition for a rehearing and petition for rehearing en banc, the Per-ales court made it clear, however, that its decision applied only “if the claimant objects to the hearsay evidence and if the hearsay evidence is directly contradicted by the testimony of live medical witnesses and by the claimant who testify in person before the examiner * * Cohen v. Perales, 416 F.2d 1250, 1251 (5 Cir. 1969). (Emphasis added.) Kyle called our attention also to a prior decision of this court, Hayes v. Gardner, 376 F.2d 517 (4 Cir. 1967), in which we reversed the Secretary’s denial of disability benefits where the report of a treating physician indicated that the claimant was disabled and the only basis for the Secretary’s decision was the opinion of the expert medical witness who did not examine the claimant. In that case, 376 F.2d at 520-521, we concluded that “[I]n view of the opinion evidence as to the existence of a disability, combined with the overwhelming medical facts, the uncontradieted subjective evidence, and claimant’s vocational background, the opinion of a doctor who never examined or treated the claimant cannot serve as substantial evidence to support the Secretary’s finding.” (Emphasis added.) After the instant case had been submitted on appeal a written opinion was prepared but we then deemed it advisable to await review of Cohen v. Perales by the Supreme Court which had granted certiorari to resolve the procedural due process issue presented in Cohen, supra. The case was decided by the Supreme Court, sub nom. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In Richardson v. Perales the Court explicitly approved HEW procedure whereby written reports of physicians are received in evidence, despite their hearsay character and the absence of an opportunity to cross-examine the reporting doctors. Moreover, the Court held that such written reports may constitute substantial evidence within § 205(g) of the Social Security Act to support rejection of disability claims, notwithstanding the presence of directly opposing testimony by the" }, { "docid": "22399907", "title": "", "text": "sufficient to support a particular conclusion. It consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance. If there is evidence to justify a refusal to direct a verdict were the case before a jury, then there is ‘substantial evidence.’ ” Laws v. Celebrezze, 368 F.2d 640, 642 (4 Cir. 1966). Accord, Richardson v. Per-ales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) ; Kyle v. Cohen, 449 F.2d 489, 492 (4 Cir. 1971); Daniel v. Gardner, 404 F.2d 889, 890, n.1 (4 Cir. 1968); Hayes v. Gardner, 376 F.2d 517, 520 (4 Cir. 1967); Thomas v. Celebrezze, 331 F.2d 541, 543 (4 Cir. 1964). There are four elements of proof to be weighed in determining whether there is substantial evidence to support the Secretary’s decision: (1) the objective medical facts; (2) the diagnoses and expert opinions of treating and examining physicians on subsidiary questions of fact; (3) subjective evidence of pain testified to by the claimant and corroborated by family and neighbors; (4) the claimant’s educational background, work history and present age. Underwood v. Ribicoff, 298 F.2d 850, 851 (4 Cir. 1962). Accord, Lackey v. Celebrezze, 349 F.2d 76, 77 (4 Cir. 1965); Dillon v. Celebrezze, 345 F.2d 753, 755 (4 Cir. 1965); Jenkins v. Celebrezze, 335 F.2d 6, 8 (4 Cir. 1964); Thomas v. Celebrezze, 331 F.2d 541, 545 (4 Cir. 1964). Claimant originally alleged rheumatoid arthritis in her hands as the basis of her disabling impairment. However, all evidence introduced at the hearing upon which the district court based its decision was that she was permanently disabled due to a severe neurosis coupled with a grossly inadequate personality. The court stated: “The Secretary’s decision is not supported by substantial evidence. A thorough review of the medical data in the record reveals that the plaintiff has suffered from a chronic severe mental impairment since 1954 and that the impairment has continued to the present. Medical reports from Spartanburg General Hospital disclose that in 1954 plaintiff suffered from emotional hysteria and a guilt or escape complex. The treating physician" }, { "docid": "5973522", "title": "", "text": "However, he found that plaintiff’s ailments are of insufficient severity to preclude him from engaging on a regular basis in the light and sedentary occupations enumerated by the vocational expert. The requirements for a disability determination are statutorily created and are not in dispute. 42 U.S.C. §§ 416(i), 423, 1382c. It is well settled that in reviewing a social security case of this kind, a court is not authorized to re-weigh the evidence; its limited function is to determine whether the Secretary’s findings of fact are supported by substantial evidence and the inferences drawn therefrom are reasonable. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Trujillo v. Richardson, 429 F.2d 1149 (10th Cir. 1970). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support the Secretary’s conclusion. Richardson v. Perales, supra; Johnson v. Finch, 437 F.2d 1321 (10th Cir. 1971). The claimant has the burden of proving some medically determinable impairment which prevents him from engaging in any substantial gainful activity. 42 U.S.C. § 423(d)(1) and (3); Lucas v. Richardson, 348 F.Supp. 1156 (D.Kan.1972). The question is not whether the claimant is unable to return to his previous work, but rather whether considering his age, education, and work experience, he is unable to engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. § 423(d)(2)(A). Relevant evidence includes objective medical facts, expert medical opinion, subjective evidence of pain and disability, and claimant’s present age, educational background, and work history. Keef v. Weinberger, 404 F.Supp. 1193 (D.Kan.1975). A statement by a physician that an individual is or is not disabled and unable to work is a conclusion upon the ultimate issue to be decided by the Secretary, and is not determinative of the question of whether the claimant is disabled. The weight to be given such a statement depends on the extent to which it is supported by scientific and complete medical findings and is consistent with other evidence as to the severity and probable duration of the individual’s impairment. 20 C.F.R. §" }, { "docid": "10579828", "title": "", "text": "in the record. DISCUSSION I. For SSI purposes, a person is considered disabled when he or she is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A). That impairment must be of such severity that the person “is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.” 42 U.S.C. § 1382c(a)(3)(B). The evidence which must be considered in determining whether an individual is disabled includes: (1)objective medical facts; (2) diagnoses and medical opinions based on such facts; and (3) subjective evidence of disability, including the pain and the individual’s educational background, age and work history. Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir.1983) (per curiam); Carroll v. Secretary, 705 F.2d 638, 642 (2d Cir.1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); Rivera v. Harris, 623 F.2d 212, 216 (2d Cir.1980). In reviewing a denial of disability benefits, the court is not empowered to make a de novo determination of whether the plaintiff is disabled. Wagner v. Secretary of Health and Human Services, 906 F.2d 856, 860 (2d Cir.1990). See Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir.1990); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984); Parker v. Harris, 626 F.2d at 231. Rather, it is the function of the Secretary, and not the reviewing court, to pass on the credibility of witnesses, including the claimant, and to resolve material conflicts in the testimony. Richardson v. Perales, 402 U.S. 389, 399, 91 S.Ct. 1420, 1426, 28 L.Ed.2d 842 (1971); Aponte v. Secretary, 728 F.2d 588, 591 (2d" }, { "docid": "710858", "title": "", "text": "proving that he cannot return to his past work, the Secretary assumes the burden of proving the last step — that there is other work that the claimant can perform. Id. If the claimant can perform other work, he is considered not disabled. In reaching a conclusion on these issues, the trier of fact should consider (1) objective medical facts, diagnoses, or medical opinions, (2) subjective testimony by the claimant as to pain or disability, and (3) background data such as the claimant’s age, education, and previous work experience. Parker v. Harris, 626 F.2d 225, 231 (2d Cir.1980); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978). Under § 205(g) of the Act, the Secretary’s factual findings are conclusive if supported by substantial evidence, which has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938). The substantial evidence test applies not only to findings of basic evidentiary facts, but also to inferences and conclusions drawn from such facts. Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105 (1972); Rodriguez v. Califano, 431 F.Supp. 421, 423 (S.D.N.Y.1977). It is the function of the Secretary, and not the reviewing court, to pass on the credibility of witnesses and to resolve material conflicts in the testimony. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In short, this Court is not to decide the case de novo. Obviously, however, the Court is not required to accept the Secretary’s determination if the Secretary failed to apply proper legal principles or failed appropriately to consider evidence critical to a just determination of the claimant’s application. Parker, 626 F.2d at 231. Discussion I have reviewed the record in light of the standards set forth above, and I conclude that the Secretary’s determination that Rivera is not disabled must be" }, { "docid": "2744191", "title": "", "text": "Both parties have moved for summary judgment. Since neither has requested a hearing the court will proceed to rule on the motions. Local Rule 6. The role of the court is limited to an examination of the record to ascertain whether there is “substantial evidence” to support the Secretary’s finding. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). While the Secretary is, in the first instance, charged with resolving questions of fact, Thomas v. Celebreeze, 331 F.2d 541, 543 (4th Cir. 1964), the administrative law judge must make explicit findings on all of the essential questions which determine eligibility as well as the evidentiary basis for his conclusions, Smith v. Weinberger, 394 F.Supp. 1002, 1006 (D.Md.1975). This court has the “duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.” Oppenheim v. Finch, 495 F.2d 396, 397 (4th Cir. 1974). Before it can affirm the Secretary’s conclusion, the court must find that the administrative law judge has considered: (1) the clinical findings of examining or treating physicians divorced from their expert judgment or opinions as to the significance of the clinical findings; (2) the medical opinions of these physicians; (3) the subjective evidence of pain and disability testified to by the claimant and corroborated by other evidence; and (4) the claimant’s background, work history and present age. Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). Here it is apparent that Judge Brown considered all of the above factors in reaching his determination. He found that Mrs. Weieht was unable to return to her employment as a nurse’s assistant because of her continuing back difficulty, but neither the continuing pain she suffered nor the condition of her right knee was sufficient, in his view, to preclude her from engaging in substantially gainful activity and therefore to render her disabled within the meaning of § 423(d)(2)(A). Judge Brown specifically found that Mrs. Weicht’s experience in hospitals suited her for a position as “a Hospital Insurance clerk or admissions clerk or other jobs related to" }, { "docid": "2753936", "title": "", "text": "relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). In order that a reviewing court may properly evaluate whether the findings of an Administrative Law Judge (or an Appeals Council) are based on substantial evidence, those findings must be explicit, Choratch v. Finch, 438 F.2d 342, 343 (3d Cir. 1971); Williams v. Celebrezze, 359 F.2d 950, 952 (4th Cir. 1966); Smith v. Weinberger, 394 F.Supp. 1002, 1006 (D.Md.1975). They must also be detailed, even to the extent of including findings of subordinate facts upon which ultimate facts are based. Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974); Smith v. Weinberger, supra. In general, the Administrative Law Judge must inquire into disability claims “in a manner that fully and fairly develops the facts,” Garrett v. Richardson, 471 F.2d 598, 603 (8th Cir. 1972) (emphasis in original), Smith v. Weinberger, supra; and with regard to a claimant’s ability or inability to engage in any substantial gainful activity, he must consider the following four factors: (1) objective medical facts (clinical findings); (2) the medical opinions of the examining or treating physicians based upon those facts; (3) the subjective evidence of pain and disability testified to by the claimant and corroborated by other evidence; and (4) the claimant’s background, work history, and present age. Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). If the claimant has more than one allegedly disabling ailment, the Secretary must consider not just the disabling effect of each ailment in isolation but also the effect upon claimant in combination. Lackey v. Celebrezze, 349 F.2d 76, 79 (4th Cir. 1965); Combs v. Weinberger, 501 F.2d 1361, 1363 (4th Cir. 1974). When the claimant has met his initial burden of establishing prima facie evidence of disability, the Secretary cannot- meet his burden of going forward with evidence of plaintiff’s ability to perform some specific job in the economy merely by offering medical testimony that plaintiff has the physical, as opposed to the vocational, ability to perform certain" }, { "docid": "13016470", "title": "", "text": "less than a preponderance.” Thomas v. Celebreeze, 331 F.2d 541, 543 (4th Cir. 1964). The Supreme Court has characterized it as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). It is the province of the ALJ to resolve conflicts in the evidence, and it is immaterial that the evidence does not preclude another conclusion. Thomas v. Celebreeze, supra at 543. Once the court finds substantial evidence supporting the Secretary’s conclusion, its inquiry must end. Laws v. Celebreeze, 368 F.2d 640, 642 (4th Cir. 1966). At the same time, the court must perform its traditional function and conduct a “searching inquiry” of the entire record to determine if substantial evidence for the Secretary’s decision does exist. Flack v. Cohen, 413 F.2d 278, 279-80 (4th Cir. 1969). The court may not speculate concerning the ALJ’s findings. Smith v. Weinberger, 394 F.Supp. 1002, 1006 (D.Md. 1975). To permit proper judicial review, the ALJ must make explicit and detailed findings, even to the inclusion of findings of subordinate facts upon which ultimate facts are based. Id. In addition, the ALJ must inquire into disability claims “in a manner that will fully and fairly develop the facts.” Sellars v. Secretary, 458 F.2d 984, 986 (8th Cir. 1972). In regard to a claimant’s ability or inability to engage in any substantial gainful activity, he must consider: (1) objective medical facts (clinical findings); (2) medical opinions of examining or treating physicians based on those facts; (3) subjective evidence of pain and disability testified to by the claimant and corroborated by other evidence; and (4) the claimant’s background, work history and present age. Hicks v. Gardner, 393 F.2d 299, 302 (4th Cir. 1968). If the claimant has more than one allegedly disabling ailment, the Secretary must consider not just the disabling effect of each ailment in isolation, but also the cumulative effect upon the claimant. See Combs v. Weinberger, 501 F.2d 1361, 1363 (4th Cir. 1974); Lackey v. Celebreeze, 349 F.2d 76, 79 (4th Cir. 1965)." }, { "docid": "22861423", "title": "", "text": "supported by substantial evidence in the record as a whole. “Substantial evidence,” in turn, has been defined for purposes of the Act as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting from Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). The Secretary must decide whether or not the claimant is “disabled” as that term is defined by sections 223(d)(1)(A) and 223(d)(2) of the Act, 42 U.S.C. §§ 423(d)(1)(A) and 423(d)(2), and the court opinions construing that statute. Our Court has stated that to meet the statutory definition of disability, the claimant must fall within the threefold requirement “(1) that there be a medically determinable physical or mental impairment which can be expected to [result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months], (2) that there be an inability to engage in any substantial gainful activity, and (3) that the inability be by reason of the impairment.” Yawitz v. Weinberger, 498 F.2d 956, 959 (8th Cir. 1974) (quoting from Garrett v. Richardson, 471 F.2d 598, 599-600 (8th Cir. 1972)). In reviewing the record to ascertain whether there is substantial evidence to support the Secretary’s finding that a claimant has not met this threefold requirement the court should look at four elements of proof: (1) the objective medical facts; (2) the diagnoses and expert opinions of treating and examining physicians on subsidiary questions of fact; (3) subjective evidence of pain testified to by the claimant and corroborated by family and neighbors; (4) the claimant’s educational background, work history and present age. Blalock v. Richardson, 483 F.2d 773, 776 (4th Cir. 1972). In the instant cases, as in most, the major area of contention centers around the second prong of the threefold requirement: that there be an inability to engage in any substantial gainful activity. It is clear that the claimant" }, { "docid": "1243614", "title": "", "text": "425 F.2d 20 (7th Cir. 1970). Judicial review is concerned only with whether the findings of the Secretary are supported by substantial evidence and whether legally correct administrative procedures were followed. Another salient feature of the record in this case is the fact that the plaintiff-claimant was represented at the administrative hearing only by a non-lawyer union representative. It is apparent from the record that said representative was present for the primary purpose of holding the claimant’s hand and not for the purpose of engaging in any meaningful and effective type of advocacy for this claimant. It is correct that it is this court’s duty to examine the entire record to ascertain if the decision was supported by substantial evidence and if any legal error was committed. The Supreme Court of the United States in Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1972), defined substantial evidence as: “more than a mere scintilla. It means such relevant evidence as a reasonable mind might expect as adequate to support a conclusion.” 91 S.Ct. at 1427. There are many cited cases for the proposition that four elements of proof must be considered by the Secretary in determining whether the claimant is disabled under the Social Security Act. These elements are: (a) Objective medical facts or clinical findings. (b) Diagnosis of examining physicians. (c) Subjective evidence of pain and disability as testified to by the claimant and as observed by others. (d) The claimant’s age, education and work history. These elements must also be considered in their interrelationship with each other. See DePaepe v. Richardson, 464 F.2d 92 (5th Cir. 1972), and Underwood v. Ribicoff, 298 F.2d 850 (1st Cir. 1962). In this case the evidence with regard to (a), (b) and (c) stand before the Secretary without dispute. There is very little dispute as to the claimant’s age, education and work history. There can be no doubt that symptoms real to the claimant though unaccompanied by objective medical data may support a claim for disability benefits. Bittel v. Richardson, 441 F.2d 1193 (3rd Cir. 1971), and Ber v." }, { "docid": "22896772", "title": "", "text": "and (2) proper legal standards were used to evaluate the evidence. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990). If the Commissioner’s findings are supported by substantial evidence, then the findings are conclusive and the Commissioner’s decision must be affirmed. 42 U.S.C. § 405(g); Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 1422, 28 L.Ed.2d 842 (1971). “Substantial evidence is more than a scintilla, less than a preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Villa, 895 F.2d at 1021-22 (internal quotations and citations omitted). In evaluating a disability claim, the Commissioner must follow a five-step sequential process to determine whether (1) the claimant is presently working; (2) the claimant’s ability to work is significantly lim ited by a physical or mental impairment; (3) the claimant’s impairment meets or equals an impairment listed in the appendix to the regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the claimant cannot presently perform relevant work. See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir.1991); 20 C.F.R. § 404.1520. In this case, at the fourth step of the sequential evaluation process, the ALJ found that Martinez could perform his past relevant work. We weigh four elements of proof when determining whether there is substantial evidence of disability: (1) objective medical facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant’s subjective evidence of pain and disability; and (4) his age, education, and work history. Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir.1991). We may not, however, reweigh the evidence or try the issues de novo. Cook v. Heckler, 750 F.2d 391, 892 (5th Cir.1985). The Commissioner, rather than the courts, must resolve conflicts in the evidence. See Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir.1983). B. Necessity of Remand Martinez suggests that a remand is required because the consultative medical examination ordered by the ALJ failed to include blood tests and x-rays suggested by the medical expert. At the hearing, medical expert Dr. William Daily recommended that Martinez" }, { "docid": "7825841", "title": "", "text": "before the AU gave insufficient weight to the testimony of Maisch’s treating physicians and to the testimony of Maisch and his wife, that there is not enough evidence to support the AU’s conclusion that Maisch was capable to sedentary work, given the medical problems with his left hand, and that the AU’s choice of March 2, 1982 as the date on which Maisch first became disabled was arbitrary. Discussion In reviewing a denial of Social Security disability benefits, a court’s function is to determine whether the decision of the Secretary is supported by substantial evidence on the record as a whole. Donato v. Secretary of Health and Human Services, 721 F.2d 414, 418 (2d Cir.1983); Spicer v. Califano, 461 F.Supp. 40, 45 (N.D.N.Y.1978); 42 U.S.C. § 405(g). Substantial evidence in this context has been defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938); Donato v. Secretary of Health and Human Services, supra, 721 F.2d at 418. The reviewing court is not to decide the case novo, and where supported by substantial evidence the Secretary’s findings of fact, as well as the inferences and conclusions to be drawn from those findings, are conclusive even where the reviewing court’s independent analysis of the evidence may differ from the Secretary’s analysis. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982). As the trier of fact, it is the function of the Secretary, and not the court, to resolve conflicts in the evidence and to pass on the credibility of witnesses. Richardson v. Perales, supra, 402 U.S. at 399, 91 S.Ct. at 1426; McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 705 (2d Cir.1980). In assessing an individual’s disability, the Secretary must consider: (1) the objective medical facts, (2) the medical opinions of the examining or treating physicians; (3) the subjective evidence of" }, { "docid": "23014555", "title": "", "text": "ALJ (1) improperly denied her claim since the evidence of her mental impairment satisfies the Secretary’s regulations defining a scheduled disability, (2) gave inadequate weight to her claims of subjective pain, and (3) improperly discounted the evidence given by her treating physicians. We see no merit in the second or third contention, but find that the first warrants a remand to the Secretary. [L2] We begin with the physical symptoms and complaints of pain, which, on the present record, need not detain us long. “It is the function of the Secretary, not [the reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant.” Carroll v. Secretary of Health and Human Services, 705 F.2d 638, 642 (2d Cir.1982). If the Secretary’s findings are supported by substantial evidence, 42 U.S.C. § 405(g) (1976); Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971), the court must uphold the ALJ’s decision to discount a claimant’s subjective complaints of pain. McLaughlin v. Secretary of Health, Education and Welfare, 612 F.2d 701, 704 (2d Cir.1982). Similarly, while the opinions of a treating physician deserve special respect, see, e.g., Carroll v. Secretary of Health and Human Services, supra, 705 F.2d at 642; Parker v. Harris, 626 F.2d 225, 232 (2d Cir.1980), genuine conflicts in the medical evidence are for the Secretary to resolve. Richardson v. Perales, supra, 402 U.S. 399, 91 S.Ct. at 1426. In the present case, there was substantial evidence in the record as a whole to support the Secretary’s determination that Aponte was not disabled by reason of her physical impairments or pain. The reports of Drs. Jackson and Fisher indicated that the objective- medical data did not support Aponte’s claim of physical disability; and those physicians concluded that Aponte had substantial residual functional capability. Their conclusion was to some degree supported also by the testimony of Aponte’s daughter-in-law which suggested that Aponte could do light cooking. The ALJ chose to credit these data and conclusions and to discount Aponte’s complaints of disabling pain. On the record as a whole, the ALJ’s" }, { "docid": "1345399", "title": "", "text": "1980); White v. Harris, 605 F.2d 867, 869 (5th Cir. 1979). The Act directs the Court to uphold the Secretary’s determination if it is supported by substantial evidence. 42 U.S.C. § 405(g); Strickland v. Harris, 615 F.2d 1103 (5th Cir. 1980). “Substantial evidence” has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938); White v. Harris, 605 F.2d 867, 869 (5th Cir. 1979). Despite the fact that determinations which are not supported by substantial evidence are “unusual, even rare,” Gaultney v. Weinberger, 505 F.2d 943, 945 (5th Cir. 1974), the Court will engage in a thorough re-examination of the record in reviewing the Secretary’s final decision. Lewis v. Weinberger, 515 F.2d 584, 587 (5th Cir. 1975); Williams v. Finch, 440 F.2d 613, 615 (5th Cir. 1971); Sayers v. Gardner, 380 F.2d 940, 942-43 (6th Cir. 1967). Judicial review of the Secretary’s decision addresses three questions: (1) Whether the proper legal standards were applied; (2) whether there was substantial evidence to support the findings of fact; and (3) whether the findings of fact resolved the crucial issues. Strickland v. Harris, 615 F.2d 1103, 1108 (5th Cir. 1980); Frith v. Celebrezze, 333 F.2d 557, 560 (5th Cir. 1964). With respect to the second question-the quantum of evidence-the reviewing Court must look at the record as a whole and take into consideration (1) objective medical facts and clinical findings; (2) diagnoses of examining physicians; (3) subjective evidence of pain and disability as testified to by the claimant and corroborated by his wife and others who have observed him; and (4) the claimant’s age, education, and work history. Johnson v. Harris, 612 F.2d 993, 997 (5th Cir. 1980); DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972); Bastien v. Califano, 572 F.2d 908, 912 (2d Cir. 1978); Vitek v. Finch, 438 F.2d 1157, 1159-60 (4th Cir. 1971). B. Disposition: Affirm, Remand," }, { "docid": "22949339", "title": "", "text": "not re-weigh the evidence; we simply determine whether there is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 1970, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842. As we have previously suggested, determinations which are not supported by substantial evidence are unusual, even rare. Payne v. Weinberger, supra, 480 F.2d at 1008; Williams v. Finch, supra, 440 F.2d at 615. In this case, there is substantial evidence to support the Secretary’s finding. Both the Administrative Law Judge and the district court summarized the evidence in some detail; we will not do so here. Basically, the finding of non-disability is supported by the testimony of several qualified experts: an orthopedic surgeon, a physician certified in rehabilitation, a psychiatrist, a neurologist also certified in psychiatry, and a vocational expert. The physician who served as medical advisor, Dr. Arthur M. Pruce, evaluated all the medical reports in this case and concluded from them that Gaultney’s impairments did not meet nor equal in severity the list of impairments in the Social Security Regulations. 20 C.F.R. Appendix to Sub-part P at 326 ff. Therefore, although there is conflicting evidence, and although we might have reached a different conclusion had we been the initial trier of fact, we hold that there is substantial evidence to support the Secretary’s determination. Gaultney next asserts that the Administrative Law Judge applied an improper legal standard in reaching his decision in that he failed to take into account the subjective testimony of Gaultney, his friends, and members of his family regarding the pain he suffers. If this claim were well founded, it would justify reversal or remand. Hayes v. Celebrezze, 5 Cir. 1963, 311 F.2d 648. It is well settled that pain alone can be disabling, even where its existence is unsupported by “objective medical, clinical or laboratory evidence.” Prewitt v. Gardner, 5 Cir. 1968, 389 F.2d 993. Furthermore, we have often held that the judge must consider subjective evidence of pain as testified to both by the claimant and by other lay witnesses. DePaepe v. Richardson," }, { "docid": "18450801", "title": "", "text": "Secretary of HEW, 393 F.2d 640 (2d Cir. 1968). The mere presence of a disease or impairment is not disabling within the meaning of the Social Security Act. It must be shown that the disease or impairment causes functional limitations which preclude plaintiff from engaging in any substantial gainful activity. E. g., Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972); Waters v. Gardner, 452 F.2d 855, 857 (9th Cir. 1971); Mann v. Richardson, 323 F.Supp. 175, 179 (S.D.N.Y.1971). When making a finding as to plaintiff’s ability or inability to engage in any substantial gainful activity, there are four elements of proof to be considered: (1) objective medical facts and clinical findings; (2) diagnoses and medical opinions of examining physicians; (3) subjective evidence of pain and disability as testified to by plaintiff and corroborated by others who have observed him; and (4) plaintiff’s age, educational background, and work history. All of these elements of proof must be considered together and in combination with each other. Gold v. Secretary of HEW, 463 F.2d 38, 41 (2d Cir. 1972): De-Paepe v. Richardson, 464 F.2d 92, 94 (5th Cir. 1972); Underwood v. Ribicoff, 298 F.2d 850 (4th Cir. 1962). Section 205(g) of the Act, 42 U.S.C. § 405(g), provides that the findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive. Accordingly, the Secretary’s findings, if reasonable, should not be disturbed by the Court on review. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Levine v. Gardner, 360 F.2d 727 (2d Cir. 1966). The conclusive effect of the substantial evidence rule applies not only with respect to the Secretary’s findings as to basic evidentiary facts, but also to inferences and conclusions drawn therefrom. Beane v. Richardson, 457 F.2d 758, 759 (9th Cir.), cert. denied, 409 U.S. 859, 93 S.Ct. 144, 34 L.Ed.2d 105 (1972); Vineyard v. Gardner, 376 F.2d 1012, 1014 (8th Cir. 1967); McHale v. Mathews, 416 F.Supp. 1191, 1192 (S.D.N.Y.1976). It is settled law that plaintiff bears the ultimate burden of persuasion to establish inability to engage in any" }, { "docid": "18304829", "title": "", "text": "is whether, despite the claimant’s severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Secretary then determines whether there is other work the claimant could perform. The burden is on the plaintiff to prove steps one through four and on the Secretary to prove step five. Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir.1984). The decision of the ALJ will be upheld as long as it is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence is “more than a mere scintilla. It means relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). Here, the parties accept that plaintiff has met his burden of showing that his condition satisfies steps one, two and four. However, plaintiff contends that the ALJ’s determination that work exists that is within the plaintiff’s capacity is not supported by substantial evidence. In assessing a claim of disability, the Secretary must consider objective and subjective factors, including: (1) objective medical facts; (2) diagnosis or medical opinions based on these facts; (3) subjective evidence of pain and disability testified to by the claimant or other witnesses; and (4) the claimant’s educational background, age, and work experience. Bluvband 730 F.2d at 891; Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir.1983). Plaintiff argues that the ALJ failed to accord proper weight to the assessment of treating physician Dr. Kanaar that plaintiff was totally disabled. In evaluating the medical evidence, the Secretary is to give greater weight to the findings of the treating physician over that of consulting physicians. This is not to suggest that the AU cannot credit the evaluations of consulting physicans over that of the treating ones, however, to do so correct procedures must be followed. See Bluvband, 730 F.2d at 893, 894. When evaluating the evidence presented by a treating physican," }, { "docid": "22370392", "title": "", "text": "substantial evidence. 42 U.S.C. § 405(g); Gold v. Sec’y of H. E. W., 463 F.2d 38 (2d Cir. 1972). Substantial evidence means more than a mere scintilla, and is defined as such relevant evidence as a reasonable man might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). In assessing disability, factors to be considered are (1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant’s educational background, age, and work experience. Gold v. Sec’y of H. E. W., supra. In such considerations eligibility for benefits is to be determined in light of the fact that “the Social Security Act is a remedial statute, to be broadly construed and liberally applied.” Id. at 41, quoting from Haberman v. Finch, 418 F.2d 664, 667 (2d Cir. 1969). While we do not agree with the Secretary’s ultimate conclusion, we find that there is substantial evidence in the record to support a finding that Bastien was not disabled on June 23, 1973, the time Bastien claims he was first disabled, and that there is also substantial evidence that the plaintiff was not disabled in mid-January, 1974, when he was discharged from his position as packer at VWR. This evidence is provided by the opinions of Drs. Porta, Maggio and Egel of January through April, 1974 that Bastien was only partially disabled. However, throughout 1974 and 1975 Bastien’s treating physician, Dr. Miller, maintained that Bastien suffered from severe degenerative progressive arthritis which caused disability. The expert opinions of a treating physician as to the existence of a disability are binding on the fact-finder unless contradicted by substantial evidence to the contrary. Gold v. Sec’y of H. E. W., supra; Branham v. Gardner, 383 F.2d 614 (6th Cir. 1967). See also Wyatt v. Weinberger, 519 F.2d 1285 (4th Cir. 1975). But cf. Miranda v. Sec’y of H. E. W., 514 F.2d 996 (1st Cir. 1975). After April, 1974, the only evidence relied" } ]

[ { "docid": "23147004", "title": "", "text": "debtor and found that future bonuses were too speculative to be included in the \"projected disposable income” analysis); In re Killough, 900 F.2d at 65 (where a question arose as to the debtor’s ability to work overtime hours, the court considered testimony provided by the debtor at the plan confirmation hearing, in addition to evaluating Schedule I, to determine the debt- or’s projected monthly income). .Because the instant controversy does not involve a dispute as to the appropriate manner in which to determine the expense side of the equation, and the parties agree that the amount of the Debtor's “reasonably necessary” expenses is $2,645, the expense component of the .\"projected disposable income” calculation will not be further treated. . In the Eastern District of North Carolina, “after reviewing a debtor's petition, schedules, statements, proposed plan, and information provided at the § 341 meeting, [it is] the trustee [who] move[s] for confirmation of a plan that he asserts is consistent with the requirements of Chapter 13.” In re Alexander, 344 B.R. at 744. . Courts have generally lined up behind either the Barr or Hardacre interpretations, with the latter having a more crowded field. . We respectfully reject the view espoused in Barr and its adherents that the term \"projected” is a synonym for \"multiplied.” Congress was not hesitant in using the term \"multiplied” when the context so demanded. See, e.g„ §§ 727(a)(2)(A)(I), and 1325(b)(3) and (4). The word \"multiplied” is quite different from the word \"projected.” The former requires only mathematical acumen; the latter, mathe-matic acumen adjusted by deliberation and discretion. . We also reject the Debtor’s other arguments made in her brief and/or in oral argument, attempting to find the meaning of the statutory terms \"disposable income” and \"projected disposable income” by pointing to one or more other inconsistencies in the BAPCPA amendments. For example, the Debtor seeks to dispose of the current ambiguity by relying on another: the language of § 1325(b)(1) which the Debtor claims directs that all of a debtor’s disposable income be paid only to \"unsecured creditors,” and §§ 1322(b)(4) and (5) which clearly permit" } ]

[ { "docid": "15228315", "title": "", "text": "to address the fact that Congress defined “disposable income” subsequently in § 1325(b)(2). Section 1325(b)(1)(B) first makes reference to “projected disposable income,” and then § 1325(b)(2) goes on to explain what is being “projected.” Courts that turn to Schedules I and J to calculate disposable income also fail to recognize that Congress tied the calculation of disposable income for above median income debtors not only to § 707(b)(2)(A) under the means test, but also to § 707(b)(2)(B). Under § 707(b)(2)(B), the court may consider special circumstances that make “such expenses or adjustments to income necessary and reasonable.” If special circumstances necessitate a deviation from Form B22C, those circumstances can be raised under § 707(b)(2)(B) without turning to Schedules I and J. While courts continue to have unrestricted flexibility “in determining whether the expenses of the below-median income debtor are reasonably necessary,” BAPCPA clearly limited the court’s role in reviewing the expenses of above median income debtors. The means test calculations present a “backward looking litmus test performed using mathematical computations of arbitrary numbers, often having little to do with a particular debtor’s actual circumstances and ability to pay a portion of debt.” By tying the phrase “amounts reasonably necessary to be expended” to the IRS standards, BAPCPA limited the judicial discretion exercised prior to the amendments in determining whether the expenses of an above median income debt- or are reasonably necessary and replaced judicial discretion with the means test calculations under § 707(b)(2). Congress determined the fairness of the application of the means test, and as one court explained “a major objective of the legislation was to remove judicial discretion from the process.” As the trustee does not object to the debtors’ calculation of disposable income as shown on Form B22C, the Court finds that the trustee’s objection to confirmation is due to be overruled and the debtors’ proposed Chapter 13 plan confirmed. A separate order will be entered consistent with this opinion. . The bar date to file claims expires January 22, 2007. . See Interim Bankruptcy Rule 1007(b)(6) of the Federal Rules of Bankruptcy Procedure: (6) A debtor" }, { "docid": "5029679", "title": "", "text": "more. She argues that the Section 1325(b) distribution Debtors have calculated is not accurate because it is based both upon an understatement of their monthly income and upon an overstatement of their monthly expenses. She also contends that their plan does not comply with Section 1325(b) because it contemplates making all of the required distributions within 37 months, which is well short of the 60 month applicable commitment period imposed by Section 1325(b)(4). The Chapter 13 Trustee further argues that Debtors’ plan does not meet the good faith standard of Section 1325(a)(3). As with her Section 1325(b) objection, this objection focuses on the discrepancy between what Debtors propose to pay their unsecured, non-priority creditors over 37 months and what Debtors apparently can afford to pay over 60 months. DISCUSSION I. Section 1325(b) Objection. A. Projected Disposable Income. Calculating a debtor’s “projected disposable income” for purposes of Chapter 13 plan confirmation pre-dates BAPCPA. It was first introduced into the process in 1984 when Congress added Section 1325(b). Subsection (1) of that addition provided that a Chapter 13 plan could not be confirmed over a trustee’s or unsecured claimant’s objection unless— (A) the value of the property to be distributed under the plan on account of such claim is not less than the amount of such claim; or (B) the plan provides that all of the debtor’s projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan. 11 U.S.C. § 1325(b)(1) (pre-BAPCPA) (emphasis added). Section 1325(b)(2) then defined disposable income to mean “income which is received by the debtor and which is not reasonably necessary to be expended ... for the maintenance or support of the debtor or a dependent of a debtor ... ”. 11 U.S.C. § 1325(b)(2) (pre-BAPCPA). Courts typically looked to the debtor’s Schedules I and J whenever a pre-BAPC-PA Section 1325(b) objection was made. Prior to the passage of BAPCPA, in order to arrive at a disposable income figure for any Chapter 13 debtor, one would" }, { "docid": "23146983", "title": "", "text": "522-23 (Bankr.E.D.Wash.2006) (“the word ‘projected’ ... requires a court to examine anticipated disposable income rather than historical disposable income, estimated disposable income, or some other type of disposable income”); In re Bossie, 2006 WL 3703203, slip op. at *2 (Bankr.D.Alaska Dec. 12, 2006) (court refused to confirm plan “because, at [that] time, there [was] insufficient evidence to calculate [the debtors’] anticipated or projected disposable income” and required the debtors to “present specific evidence to show that the numbers reflected on form [B]22C are inaccurate projections of their future finances”). Said otherwise, the latter camp provides a critical meaning to the term “projected” which the former would dwarf. The Debt- or here touts the first camp as better reasoned; the Trustee urges this Panel, to follow the second, as did the bankruptcy court below. A closer examination of the decisions in support of each interpretation seems a worthwhile exercise. a. Barr and Its Progeny Before the court in Barr was an above-median income debtor whose “disposable income,” according to Form B22C, yielded a negative result; however, the difference between her Schedules I and J reflected net disposable income of $2,529. In re Barr, 341 B.R. at 183. When the debtor’s proposed plan provided no payments to her unsecured creditors based on the Form B22C calculation, the Chapter 13 trustee complained that the plan did not comply with the good faith requirement of § 1325(a)(3). The Barr court held that the definitions of “disposable income” were “detailed and inflexible, particularly as to expenses and deductions for above-median-income debtors.” Id. at 185 (emphasis added). The court reasoned that “[c]alculating ‘disposable income’ for above-median-income debtors under the new section 1325(b) is now separated from a review of Schedules I and J and no longer turns on the court’s determination of what expenses are reasonably necessary for the debtor’s support.” Id. at 186. Conceding that many sources had criticized this approach as producing unintended or absurd results, the court characterized its position as a refusal to rewrite § 1325(b) as “to do so ... would impermissibly undermine policy choices made by Congress.” Id. It is" }, { "docid": "405614", "title": "", "text": "the debtor’s household size in his state. If the debtor’s CMI is above the median, the debtor’s expenses are limited by national and local standards as set forth in § 707(b)(2). 11 U.S.C. § 1325(b)(3). If the debtor’s CMI is below the median, no formal limits are prescribed; reasonably necessary expenses are evaluated on a case-by-case basis. See In re Brooks, 784 F.3d 380, 384 n.3 (7th Cir. 2015). It is important to note that for both above-median and below-median debtors, reasonably necessary expenses are not limited to those listed on Schedule J. In fact, some reasonably necessary expenses, such as taxes, insurance, and union dues, appear on Schedule I, not Schedule J. In short, the debtor’s disposable income equals her CMI minus all reasonably necessary expenses. Schedules I and J do not determine the debtor’s plan payment, but, as discussed later, they can provide a convenient shortcut for calculating disposable income when the parties agree to this approach. B. “Projected” Disposable Income Section 1325(b) requires a debtor to commit her projected disposable income to the plan. The Supreme Court examined the meaning of “projected” in Hamilton v. Lanning, 560 U.S. 505, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010). The Court explained that the bankruptcy judge “should begin by calculating disposable income, and in most cases, nothing more is required.” Id. at 519, 130 S.Ct. 2464. Yet, the word “projected” allows bankruptcy judges “in unusual cases” to “go further and take into account other known or virtually certain information about the debtor’s future income or expenses.” Id. Under § 1325(b) and Banning, the debt- or’s plan payment in almost all cases will depend on the debtor’s financial circumstances when the petition is filed. The formula in § 1325(b) for setting the plan payment is not intended to address possible future changes in income or expenses unless they are virtually certain to occur. If income or expenses increase or decrease significantly after confirmation, the only way to change the plan payment is through a motion to modify the plan under § 1329 of the Code, 11 U.S.C. § 1329. Courts have" }, { "docid": "4571347", "title": "", "text": "Debtors assert that the disposable income test of § 1325(b) is not applicable to § 1329(a) modifications and that the provisions of §§ 1322(a), 1322 (b) and 1325(a), made applicable under 11 U.S.C. § 1329(b)(1), including the requirements of good faith and feasibility, are solely determinative. Plan Confirmation Requirements. Section 1325 of the Bankruptcy Code sets forth the requirements that must be met in order to obtain confirmation of a Chapter 13 plan. Section 1325(a) lists the essential requirements, which include that the plan must be proposed in good faith. Under § 1325(b)(1), if the trustee or an unsecured creditor objects to a proposed chapter 13 plan, the plan must provide that all of the debtor’s “projected disposable income” received in the applicable commitment period be applied to payments to unsecured creditors. The Bankruptcy Code does not define “projected disposable income.” The Supreme Court, however, has stated that projected disposable income should be calculated based upon disposable income, “and in most cases, nothing more is required.” Hamilton v. Lanning, 560 U.S. 505, 519, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010). “Disposable income” is defined in § 1325(b)(2) as “current monthly income received by the debtor ... less amounts reasonably necessary to be expended ... for the maintenance or support of the debtor.... ” “Current monthly income” is defined in § 101(10A) as “the average monthly income from all sources that the debtor receives ... derived during the 6-month period ending on ... the last day of the calendar month immediately preceding the date of the commencement of the case.... ” (emphasis added). Section 1325(b)(3) requires that an above-median income debtor use the “means test” of § 707(b)(2) to calculate “amounts reasonably necessary” for maintenance or support of the debtor. Section 707(b)(2)(ii) provides that certain monthly expenses shall be limited to the amounts specified under the National Standards and Local Standards issued by the Internal Revenue Service. See Mort Ranta v. Gorman, 721 F.3d 241, 250-51 (4th Cir.2013) (includes a discussion of “projected disposable income” in the context of plan confirmation). Official Form 22C calculates a debtor’s monthly disposable income by" }, { "docid": "6486767", "title": "", "text": "Trustee has not questioned the manner in which the Guzmans completed their Form B22C; rather the Trustee’s focus is on the excess of Schedule I income over the Schedule J expenses. And Jass was another “rear view mirror” (Form B22C) versus “crystal ball”(Schedule I) case, analyzing the requirement that projected disposable income be dedicated to the plan. See In re Renicker, 342 B.R. 304, 308-309 (Bankr.W.D.Mo.2006) (“In Jass, Judge Thurman determined that disposable income should be calculated using a debtor’s projected (versus historical) income, and that while CMI, an inherently retrospective concept, is presumed to be representative of the debtor’s projected income, that presumption can be rebutted by a showing that the CMI is no longer accurate.”). Not one of the cases cited by the Trustee analyzed the § 1325(b)(3) requirement that reasonably necessary expenses for above-median debtors shall be determined under § 707(b)(2). The Guzmans have cited In re Barr, 341 B.R. 181 (Bankr.M.D.N.C.2006), which does construe the same provisions at issue here. In Barr, the above-median debtor’s Form B22C showed a negative monthly disposable income of $76.47, but a comparison of her Schedules I and J showed over $500 per month available after subtracting her proposed plan payments. The trustee argued that the debt- or’s unwillingness to commit any of the leftover funds constituted a lack of good faith, and objected to confirmation of her plan under § 1325(a)(3). The debtor countered that her ability to pay must be determined solely by § 1325(b)(3), i.e., Form B22C. The court sided with the debtor, first noting that after the amendments made by BAFJA in 1984, ability to pay was not a part of the good faith analysis in confirming a chapter 13 plan. More importantly, the court in Barr focused on the mandatory nature of the language of § 1325(b)(3): “Amounts reasonably necessary to be expended under paragraph (2) shall be determined in accordance with subparagraphs (A) and (B) of § 707(b).” (Emphasis supplied). This language removes all discretion from the bankruptcy court in reviewing the reasonableness of the expenses claimed by the above-median debtor. The Barr court held:" }, { "docid": "23179181", "title": "", "text": "be filed when the case is commenced. The debtors contended that the use of the word “projected” before the phrase “disposable income” indicated that post-filing changes in circumstances should be considered. The Jass court agreed. Id. at 414-16. It based its decision on the plain language of the statute. A case more similar factually to the instant one is In re Barr, 341 B.R. 181, another chapter 13 case involving an above-median-income debtor. In Barr, the debtor’s financial situation had improved since the six months preceding the bankruptcy filing. The debtor’s “current monthly income” showed a negative cash flow whereas her actual disposable income was substantial. The debtor did not want her post-filing change in circumstances to be considered in the confirmation process. The Barr court concluded that it should not be. However, it did not base its decision on a construction of the phrase “projected disposable income.” In Barr, it appears, the only objection to confirmation made by the chapter 13 trustee was based on lack of good faith. See 11 U.S.C. § 1325(a)(3). The Barr court examined the evolution of confirmation requirements and concluded that a debtor’s ability to pay could not be considered in determining good faith under section 1325(a)(3). Barr, at 182-86. Thus, while the Barr court’s decision on the issue presented appears sound, it does not call into question the correctness of the decision in Jass. The Court agrees with the Jass court that the actual and anticipated future income must be considered, rather than simply his “current monthly income,” in determining the debtor’s “projected disposable income” for purposes of confirming a chapter 13 plan. Thus, this is also the correct income figure to use in deciding whether to grant or deny a motion to dismiss a chapter 7 case under section 707(b)(3)(B). The Debtor’s actual monthly income at present is $5,530.20. How the Debtor’s reasonably necessary expenses should be determined is not at issue. See 11 U.S.C. § 1325(b)(3). Section 1325(b)(3) provides that, if the debt- or’s “current monthly income” is above the median, these expenses must be determined in accordance with the section" }, { "docid": "23205611", "title": "", "text": "expenditures necessary for the continuation, preservation, and operation of such business. 11 U.S.C. § 1325(b) (emphases added). The phrase “current monthly income” (CMI) is defined as the average monthly income of the debtor from all sources over the six-month period preceding the filing of the schedule of current income required by § 521(a). 11 U.S.C. § 101(10A). In the BAPCPA, Congress modified § 1325(b)’s definition of “disposable income” by using an average of past monthly income and by adding means-testing for above-median debtors. Section 1325(b)(3) incorporates certain rules of 11 U.S.C. § 707(b)(2) to determine allowed expenses for these debtors, substituting IRS standard expense deductions for the debtor’s actual expenses as shown on schedule J. The above-median debtor must file Form 22C (previously Form B22C), which uses the standardized calculations, and the debtor’s disposable income calculated on this form may well differ from the debtor’s actual disposable income reflected on schedules I and J. The BAPCPA did not materially change § 1325(b)(1)(B), and did not change the treatment of projected income. Our task is to interpret the phrase “projected disposable income” in light of the new definition of “disposable income” in § 1325(b)(2). B. Analysis Both parties contend the statute’s plain language favors their interpretation, and courts reaching opposite results have similarly claimed this high ground of statutory interpretation. The competing interpretations are, in brief: (1) a mechanical approach, favored by Nowlin, in which “projected” is simply a mathematical task of multiplying the “disposable income” calculated under § 1325(b)(2) by the term of the applicable commitment period; and (2) a forward-looking approach, favored by the Trustee, in which projection allows the bankruptcy court to consider evidence of substantial changes to the debtor’s income or expenses that have occurred before confirmation or will occur within the plan’s period. We recognize that both approaches create difficulties, but we are persuaded that the Trustee’s approach best comports with the statutory language. As noted, Congress changed the definition of “disposable income” in § 1325(b)(2), but left unchanged the phrase “projected disposable income” in § 1325(b)(1)(B). We are persuaded that the independent definition of “projected”" }, { "docid": "12196436", "title": "", "text": "without justification, that a debt- or’s circumstances will not change after the date of case commencement or during the plan commitment period. Life informs otherwise. In re Kibbe, 361 B.R. at 312. The Kibbe court comments in a footnote that We respectfully reject the view espoused in Barr and its adherents that the term “projected” is a synonym for “multiplied.” Congress was not hesitant in using the term “multiplied” when the context so demanded. See, e.g., §§ 727(a)(2)(A)(I), and 1325(b)(3) and (4). The word “multiplied” is quite different from the word “projected.” The former requires only mathematical acumen; the latter, mathematic acumen adjusted by deliberation and discretion. Id. n. 9. Thus, Kibbe, in contrast to Alexander, would have us use the debtor’s actual income under the 'theory that the Congressional definition of disposable income is “only a starting point.” There are several problems with the Kibbe analysis. First, by focusing on the words “projected,” “to be received,” “beginning on the date,” and “effective date of the plan,” and ignoring the Congressional definition of “disposable income,” that clause becomes complete surplusage in violation of the basic tenants of statutory construction. Unless “projected disposable income” is related to “disposable income,” § 1325(b)(2) is nothing more that a bizarre curiosity, a hanging definition with no meaning, relevance or importance. By utilizing the Alexander court’s interpretation of “taking the calculation and doing the math,” (344 B.R. at 749), there is meaning to the future oriented words of § 1325(b)(1)(B), including the now infamous “projected,” as well as the definition of “disposable income” under § 1325(b)(2). As Chief Judge Gerling observes in Rotunda The argument that Congress intended something more when it referred to “projected” in Code § 1325(b)(1)(B) fails to address the fact that Congress defined “disposable income” after that provision, in Code § 1325(b)(2). The first subsection, Code § 1325(b)(1)(B) first makes reference to “projected disposable income” and then the next subsection, specifically Code § 1325(b)(2), goes on to explain what was being “projected,” namely, CMI “received by the debt- or ... to the extent reasonably necessary to be expended.... ” In re" }, { "docid": "21317281", "title": "", "text": "are not derived from a debtor’s actual expenses. Instead, the expenses are based, in large part, on predetermined standards, particularly standards “issued by the Internal Revenue Service.” 11 U.S.C. § 707(b)(2)(A)(ii)(I). Although the list of available expenses is both detailed and lengthy, the calculation of disposable income for an above median family income debtor is theoretically simple: CMI minus the allowed expenses of § 707(b)(2)(A) equals disposable income. Finally, after those calculations are completed, the court may consider “special circumstances” under the court’s limited discretion to adjust either CMI or expenses. 11 U.S.C. § 707(b)(2)(B). A debtor is required to make the appropriate calculation of her CMI, allowed expenses, and disposable income on Form B22C, a form that must be completed and filed under the new law. In this case, the Debtor’s Amended Form B22C (Doc. 16) indicated that the Debtor’s CMI is $7,953.00. On an annualized basis, the Debtor’s income is above the median family income in the state of Ohio for her household size. After subtracting expenses, the parties agree that the Debtor’s disposable income [§ 1325(b)(2) ] is $2,283.76 per month. Thus, although the Debtor’s actual monthly net income on her schedules is $1,660.00, her disposable income as derived from the § 1325(b)(2) formula is $2,283.76 per month. Because the Debtor proposes only to pay her actual monthly net income into her plan rather than pay her unsecured creditors the higher disposable income figure, the Chapter 13 Trustee, Jeffrey M. Kell-ner (the “Trustee”), filed an objection'to confirmation of the proposed plan (Doc. 18). Initially, the Trustee argued that the plan was not filed in good faith pursuant to 11 U.S.C. § 1325(a)(3). However, the parties later stipulated that good faith was no longer at issue (Doc. 30). The Trustee instead argues that as an above median family income debtor, the Debtor’s disposable income warrants a plan that pays a 100% dividend to unsecured creditors. This argument is not based on good faith, but, as will be discussed, on a legal interpretation of § 1325(b) and its requirement that, upon an objection to confirmation, a Debtor must submit" }, { "docid": "22911602", "title": "", "text": "deductions, computed in accordance with section 707(b)(2)(A) and (B), which total $6,607.47. Based upon these statutory calculations, the monthly disposable income shown by the Debtor in her Form B22C is a negative figure of $76.47. However, according to Debtor’s Schedules I and J, the Debtor has actual current net income of $4,667.00 per month, actual current expenditures of $2,529.00 per month and net disposable income of at least $2,038.00 per month which she actually receives. It thus appears that the Debtor not only will be able to make the proposed plan payment of $1,525.00 per month, but also will have at least $513.00 per month left after doing so. The Debtor’s unwillingness to commit any of those remaining funds to her plan is the primary factor that prompted the Trustee’s objection to confirmation pursuant to section 1325(a)(3). ANALYSIS The Trustee’s contention that the Debtor’s plan does not comply with the good faith requirement of section 1325(a)(3) is based upon a single factor— the amount of the proposed plan payment. In a nutshell, the Trustee argues that the Debtor failed to propose a plan in good faith because, based upon the actual income and actual expenses reflected on Schedules I and J, the Debtor has the ability to pay more than proposed in the plan. The Debtor’s response is that a Chapter 13 debtor’s ability to pay must be determined under section 1325(b) rather than section 1325(a)(3), and that her plan satisfies the requirements of section 1325(b) as revised by BAPCPA. Debtor’s argument that section 1325(b) is the controlling provision in this case has strong historical support. Following the adoption of the Bankruptcy Reform Act of 1978, there was considerable judicial disagreement about the meaning of the good faith standard and whether it required a particular level of payments to unsecured creditors. See Generally 8 COLLIER ON BANKRUPTCY ¶¶ 1324.04 and 1325.LH (15th ed. rev.2005). The ongoing dispute regarding whether there should be a minimum level of payments in Chapter 13, other than the section 1325(a)(4) best interests of creditors test, was resolved by Congress when section 1325(b) was added to" }, { "docid": "12196435", "title": "", "text": "340 B.R. 411 (Bankr.D.Utah 2006). In Kibbe, the first appellate voice on the subject, the Bankruptcy Appellate Pane! for the First Circuit stated: We agree with the bankruptcy court that “projected disposable income” as set forth in § 1325(b)(1)(B) must be grounded in the Debtor’s anticipated income ... during the term of her plan. And we agree with the reasoning in Jass that Form B22C must at least be the starting point for any determination of “projected disposable income.” In the event that a debtor’s “current monthly income” as set forth by Form B22C is substantially the same as the actual current income at the time of confirmation of the plan, the inquiry begins and ends with Form B22C. But where, as here, the “current monthly income” amount is not true to the debtor’s actual current income, courts should assume that Congress intended that they rely on what a debtor can realistically pay to creditors through his or her plan and not on any artificial measure. Attaching the word “projected” to a historical calculation assumes, without justification, that a debt- or’s circumstances will not change after the date of case commencement or during the plan commitment period. Life informs otherwise. In re Kibbe, 361 B.R. at 312. The Kibbe court comments in a footnote that We respectfully reject the view espoused in Barr and its adherents that the term “projected” is a synonym for “multiplied.” Congress was not hesitant in using the term “multiplied” when the context so demanded. See, e.g., §§ 727(a)(2)(A)(I), and 1325(b)(3) and (4). The word “multiplied” is quite different from the word “projected.” The former requires only mathematical acumen; the latter, mathematic acumen adjusted by deliberation and discretion. Id. n. 9. Thus, Kibbe, in contrast to Alexander, would have us use the debtor’s actual income under the 'theory that the Congressional definition of disposable income is “only a starting point.” There are several problems with the Kibbe analysis. First, by focusing on the words “projected,” “to be received,” “beginning on the date,” and “effective date of the plan,” and ignoring the Congressional definition of “disposable income,”" }, { "docid": "20261705", "title": "", "text": "to a debtor’s prebankruptcy “current monthly income” alone (what some called a “mechanical” approach) or whether a bankruptcy court could engage in a “forward-looking approach.” 130 S.Ct. at 2478. The debtor in Lanning had received a one-time “buyout” that greatly inflated her income in the six-month prefiling period used to establish current monthly income under § 101(10A). This- resulted in her being an above-median income debtor. Even though her Form 22C monthly expenses, calculated under § 707(b)(2), were far higher than her estimated expenses on schedule J, the “disposable income” under the means test and as shown on Form 22C was $1,114.98, an amount far in excess of the $149.03 per month available as shown on schedules I and J. Id. at 2470. Relying on its interpretation of the term “projected” in § 1325(b)(1)(B), the Supreme Court adopted a “forward-looking” approach for determining a chapter 13 debtor’s projected disposable income. Id. at 2469. It ultimately held: Consistent with the text of § 1325 and pre-BAPCPA practice, we hold that when a bankruptcy court calculates a debtor’s projected disposable income, the court may account for any changes in the debtor’s income or expenses that are known or virtually certain at the time of confirmation. Id. at 2478. However, Lanning certainly did not suggest that looking beyond Form 22C would be the norm. It characterized the respondent’s argument in that appeal as one where the statutory formula would be determinative in most cases but that, in “exceptional cases, where significant changes in a debtor’s financial circumstances are known or virtually certain, a bankruptcy court has discretion to make an appropriate adjustment,” noting that this was “the stronger argument.” Id. at 2471. It also provided the following guidance: “[A] court taking the forward-looking approach should begin by calculating disposable income, and in most cases, nothing more is required. It is only in unusual cases that a court may go further and take into account other known or virtually certain information about the debt- or’s future income or expenses.” Id. at 2475. A fair reading of Lanning indicates that the Supreme Court did not" }, { "docid": "7222176", "title": "", "text": "between the completion of Form B22C calculation and the consideration by the court of the objection to confirmation. See, e.g., In re Teixeira, 358 B.R. 484 (Bankr.D.N.H.2006) (debtor’s income declined since the filing); In re Grady, 343 B.R. 747 (Bankr.N.D.Ga.2006) (debtor’s income reduced pre-petition); In re Renicker, 342 B.R. 304 (Bankr.W.D.Mo.2006) (debtor’s expenses increased substantially upon a move to another state); In re Jass, 340 B.R. 411 (Bankr.D.Utah 2006) (debtor’s income on Form B22C, based on a six month average, was significantly higher than the income on Schedule I). Here, the debtors’ income and expense numbers have not changed. The debtors’ income has remained constant during the six months preceding the bankruptcy filing and following the filing. There is no indication in the record of any change in the debtors’ expenses. Nor is there a foreseeable change anticipated. While it is recognized that the BAPCPA revisions to section 1325(b) have generated a greater focus upon the term “projected”, particularly where a debtor’s financial circumstances have changed or are “virtually certain” to change during the plan, see Colliers, supra, adherence to the statutory formula is required where no such changes exist. The trustee’s suggestion that the term “projected” should be infused with an expanded formulaic approach, requiring a calculation of the debtors’ disposable income according to the section 1325(b)(3) definition, then comparing the disposable income to Schedules I and J and adjusting accordingly, particularly where income and expenses have not changed, is simply not justified by the language of the statute. See In re Alexander, 344 B.R. 742, 752 (Bankr.E.D.N.C.2006) (“[T]he court’s job is to interpret the new statute as clearly written, not to nostalgically preserve the past by seizing on isolated words such as ‘good faith’ and ‘projected’ and inflating their meaning beyond justification.”) See also In re Dew, 344 B.R. 655, 660 (Bankr.N.D.Ala.2006) (“[I]f a debtor’s income and expenses have been relatively constant and there is no reasonable expectation of substantial change or fluctuations ..., then projected disposable income and disposable income will in virtually all, if not all, cases be the same.”). Absent a known or expected change" }, { "docid": "15230200", "title": "", "text": "accounts for this increase in Debtor’s income, Creditors preserve the argument to the extent Debtor does not concede the same. Creditors maintain, however, that Debtor’s Form 22C materially understates her projected disposable income absent inclusion of federal and state income tax refunds in excess of $1,500.00. Creditors additionally argue that Debt- or’s expenses are not “reasonable and necessary” within the meaning of § 1325(b)(2), which defines such expenses as those which are “sufficient to sustain basic needs [regardless of the debtor’s] former status in society or the lifestyle to which he is accustomed_” In particular, Creditors allege that the month-to-month lease for a purportedly luxurious Rental Property added a significant monthly expense during the pendency of Debtor’s bankruptcy. They contend that this undertaking demonstrates Debtor’s disregard for her obligations as a debtor and the quid pro quo associated with bankruptcy protection. In support thereof, Creditors cite In re Kitson, 65 B.R. 615 (Bankr.E.D.N.C.1986), for the proposition that a “debtor who proposes to pay his creditors [] cents on the dollar cannot expect to go ‘first class’ when ‘coach’ is available.” Id. at 621-22; In re Loper, 367 B.R. 660, 665 (Bankr.D.Colo.2007) (holding that a plan should not be confirmed “whenever debtors include in their budgets expenditures for luxury items, or excessive expenditures for non-luxury items.”). Creditors contend that Debtor’s expenses should be determined in accordance with § 707(b)(2)(A) and (B), notwithstanding the statute’s express application only to above median income debtors pursuant § 1325(b)(3). Rather, Creditors argue that the Court has discretion to adjust expenses under Hamilton v. Lanning, 560 U.S, 505, 524, 130 S.Ct. 2464, 177 L.Ed.2d 23 (2010), wherein the Supreme Court held that income can be adjusted based on changes that are known or virtually certain as part, of the Court’s projection of disposable income. Accordingly, Creditors assert that § 707(b)(2) standards should apply to Debtor, either strictly, because she was an above median income debtor as of the date of conversion, or as a cap or guide, where it would be unfair to creditors to confirm a plan in which a below median income debtor is" }, { "docid": "6624479", "title": "", "text": "under advisement. DISCUSSION The confirmation requirements of Chapter 13 are set out in Section 1325 of the Bankruptcy Code. General brings into question two of these requirements: whether the Debtor’s Plan was proposed in good faith, as required by Section 1325(a)(3); and whether the Plan provides for the application of all the Debtor’s disposable income to fund the Plan, as required by Section 1325(b). Section 1325(a)(3) provides: (3)the plan has been proposed in good faith and not by any means forbidden by law; Section 1325(b)(1) provides in relevant part: (b)(1) If the trustee or the holder of an allowed unsecured claim objects to the confirmation of the plan, then the court may not approve the plan unless, as of the effective date of the plan— (B) the plan provides that all of the debtor’s projected disposable income to be received in the three-year period beginning on the date that the first payment is due under the plan will be applied to make payments under the plan. Disposable income is defined in Section 1325(b)(2): (2) For purposes of this subsection, “disposable income” means income which is received by the debtor and which is not reasonably necessary to be expended— (A) for the maintenance or support of the debtor or a dependent of the debtor; A debtor’s failure to meet the disposable income requirement of Section 1325(b) does not require the finding that the debtor did not propose the plan in good' faith pursuant to Section 1325(a)(3). See In re Sutliff, 79 B.R. 151 (Bankr.N.D.N.Y.1987). The two are distinct and separate requirements of confirmation. Good faith is determined under the totality of the circumstances, In re Smith, 848 F.2d 813 (7th Cir.1988), while the disposable income requirement turns only on whether the debt- or’s budgeted expenses are reasonably necessary. Moreover, unlike Section 1325(a)(3), the plain language of Section 1325(b) precludes the Court from raising the disposable income issue sua sponte. Only an unsecured creditor or the Chapter Trustee may do so. In the present case, General has not established that the Debtor’s Plan was not proposed in good faith. The purchase of" }, { "docid": "13568608", "title": "", "text": "with Van Bodegom Smith, 383 B.R. at 456 (stating in the context of a mortgage payment that \"the question of whether the debtors committed all of their projected disposable income into the plan is a matter solely for review under § 1325(b), and is not pertinent to engaging in a review of good faith under § 1325(a)(3).”), and Austin, 372 B.R. at 683 (holding in the context of an objection to the above-median-income debtors’ decision to continue making a payment on secured debt that \"post-BAPCPA, [t]he disposable income a debtor decides to commit to his plan is not the measure of his good faith in proposing the plan”) (internal quotation marks omitted). . See Lanning, 130 S.Ct. at 2470 (\"If a debt- or's income is below the median for his or her State, ‘amounts reasonably necessary’ include the full amount needed for 'maintenance or support,’ see § 1325(b)(2)(A)(i), but if the debtor's income exceeds the state median, only certain specified expenses are included, see §§ 707(b)(2), 1325(b)(3)(A).” (footnote omitted)). . The Appellant makes three additional arguments in support of her position that the Appellees had positive projected disposable income as of the date of confirmation. First, she contends that the Appellees' projected repayment of a retirement loan during the term of the plan must be taken into account in the calculation of their projected disposable income. The issue of whether disposable income includes amounts that become available as a result of a debtor repaying a retirement-plan loan is on appeal from the Bankruptcy Appellate Panel for the Sixth Circuit. See Burden v. Seafort (In re Seafort), 437 B.R. 204 (6th Cir.BAP 2010), appeal docketed, No. 10-6248 (6th Cir. Dec. 1, 2010). Second, the Appellant argues that the Appellees may not deduct certain standardized deductions allowed by § 1325(b)(3) and § 707(b)(2)(A) and (B) if they did not actually incur the expenses. We need not address either of these issues because the exclusion of Social Security benefits from disposable income and the deduction of the mortgage payment together mean that the Appellees had negative projected disposable income as of the confirmation" }, { "docid": "5029678", "title": "", "text": "OPINION RE: CHAPTER 13 TRUSTEE’S SECTIONS 1325(a)(3), 1325(b), AND MEANS TEST CALCULATION OBJECTIONS JEFFREY R. HUGHES, Bankruptcy Judge. Mark and Donna McGillis (“Debtors”) have requested the court to confirm their plan over the Chapter 13 Trustee’s objection. The Chapter 13 Trustee objects because Debtors allegedly are not committing to their unsecured creditors all of their disposable income as required by Section 1325(b) of the Bankruptcy Code. The Chapter 13 Trustee also asserts that Debtors’ plan is not proposed in good faith. Debtors filed their petition for relief on June 28, 2006, which is after the effective date of BAPCPA. Debtors’ plan proposes to distribute an estimated $8,430.00 to all of their unsecured, non-priority creditors. Debtors’ arrived at this figure by multiplying what they have calculated to be their disposable income under Section 1325(b)(2) by the required “applicable commitment period” under Section 1325(b)(4). The Chapter 13 Trustee contends that Debtors’ plan is objectionable under Section 1325(b) because it proposes payments into the plan of only $140.00 per month when Debtors can in fact afford to pay more. She argues that the Section 1325(b) distribution Debtors have calculated is not accurate because it is based both upon an understatement of their monthly income and upon an overstatement of their monthly expenses. She also contends that their plan does not comply with Section 1325(b) because it contemplates making all of the required distributions within 37 months, which is well short of the 60 month applicable commitment period imposed by Section 1325(b)(4). The Chapter 13 Trustee further argues that Debtors’ plan does not meet the good faith standard of Section 1325(a)(3). As with her Section 1325(b) objection, this objection focuses on the discrepancy between what Debtors propose to pay their unsecured, non-priority creditors over 37 months and what Debtors apparently can afford to pay over 60 months. DISCUSSION I. Section 1325(b) Objection. A. Projected Disposable Income. Calculating a debtor’s “projected disposable income” for purposes of Chapter 13 plan confirmation pre-dates BAPCPA. It was first introduced into the process in 1984 when Congress added Section 1325(b). Subsection (1) of that addition provided that a Chapter" }, { "docid": "10714884", "title": "", "text": "a 28.7% recovery for Class 4. Counsel for the Trustee represented as of June 25, 2012, the Debtor was current on monthly payments under the Plan. On February 8, 2012 the Trustee filed her Objection, asserting two objections to confirmation of the Plan. First, the Trustee alleges the Debtor’s Marital Adjustment Deduction is overstated to reduce the Debtor’s household income to below the median. The Trustee argues the Debtor’s household income is actually above the median, and she should calculate her disposable income under 11 U.S.C. § 1325(b)(3) rather than § 1325(b)(2). Thus, the Trustee asserts she cannot determine if the Debtor is committing all of her disposable income to the Plan based on the Debtor’s calculation of disposable income under § 1325(b)(2). Second, the Trustee objects to confirmation because the Debtor did not include Mr. Toxvard’s income on Schedule I, and a complete Schedule I is necessary to calculate disposable income under § 1325(b)(2). DISCUSSION With respect to confirmation of a Chapter 13 plan, “[t]he controlling section of the Bankruptcy Code is § 1325.” The instant dispute centers on the Debtor’s Line 19 Marital Adjustment Deduction, and her calculation of disposable income under § 1325(b)(2). Based on the facts of this ease, the issue before the Court is whether the Debtor’s calculation of disposable income, which includes the Marital Adjustment Deduction, complies with § 1325(b)(1)(B). If so, the Debtor’s Plan may be confirmed over the Trustee’s Objection. Interpretation of the Line 19 marital adjustment is an issue of first impression for this Court. The Court notes the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”) amended § 1325(b) to establish requirements for Chapter 13 plan payments, where the plan does not provide for full payment of unsecured claims and an objection to confirmation is filed by a trustee or a holder of an unsecured claim. In this circumstance, § 1325(b)(1)(B) requires payment of all the debtor’s projected disposable income for the applicable commitment period to unsecured creditors. BAPCPA amended § 1325(b)(2) and added § 1325(b)(3), which together provide a new definition of “disposable income.” Specifically, these amendments" }, { "docid": "23146984", "title": "", "text": "the difference between her Schedules I and J reflected net disposable income of $2,529. In re Barr, 341 B.R. at 183. When the debtor’s proposed plan provided no payments to her unsecured creditors based on the Form B22C calculation, the Chapter 13 trustee complained that the plan did not comply with the good faith requirement of § 1325(a)(3). The Barr court held that the definitions of “disposable income” were “detailed and inflexible, particularly as to expenses and deductions for above-median-income debtors.” Id. at 185 (emphasis added). The court reasoned that “[c]alculating ‘disposable income’ for above-median-income debtors under the new section 1325(b) is now separated from a review of Schedules I and J and no longer turns on the court’s determination of what expenses are reasonably necessary for the debtor’s support.” Id. at 186. Conceding that many sources had criticized this approach as producing unintended or absurd results, the court characterized its position as a refusal to rewrite § 1325(b) as “to do so ... would impermissibly undermine policy choices made by Congress.” Id. It is noteworthy, however, that the Barr decision focused particularly on calculations for above-median income debtors. In re Alexander, 344 B.R. 742 (Bankr.E.D.N.C.2006), involved several debtors, both above- and below-median income earners, who had objected to the trustee’s motions for confirmation of their various plans. Following Barr, the Alexander court, in dicta, strictly construed the new statutory language and refused to conform the new § 1325 to pre-BAPCPA standards. It opined that: The concept of disposable income as the bankruptcy system knew it has changed. However, this court will not override the definition and process for calculating disposable income under § 1325(b)(2)-(3) as being absurd simply because it leads to results that are not aligned with the old law. [Section] 1325(b)(2)-(3) plainly sets forth a new definition and method for calculating disposable income, and Form B22C is the tool for arriving at that disposable income figure under the new law.... [I]n order to arrive at ‘projected disposable income,’ one simply takes the calculation mandated by § 1325(b)(2) [using Form B22C] and does the math.” Id. at 747-749" } ]

[ { "docid": "22459652", "title": "", "text": "underwrite the principal or income from the trust or any part thereof or make any commitments, contingent or otherwise, respecting them, beyond his promise to transfer the securities to a trustee. But petitioner argues that the rule of Douglas v. Willcuts, supra, should nonetheless apply since the decree recognized the husband’s preexisting duty to support and defined that duty as coextensive with what the parties had themselves arranged, and since the husband simply carved out future income from property which he then owned and devoted it in advance to the discharge of his obligation. We take a different view. If respondent had not placed the shares of stock in trust but had transferred them outright to his wife as part of the property settlement, there seems to be no doubt that income subsequently accrued and paid thereon would be taxable to the wife, not to him. Under the present statutory scheme that case would be no different from one where any debtor, voluntarily or under the compulsion of a court decree, transfers securities, a farm, an office building, or the like, to his creditor in whole or partial payment of his debt. Certainly it could not be claimed that income thereafter accruing from the transferred property must be included in the debtor’s income tax return. If the debtor retained no right or interest in and to the property, he would cease to be the owner for purposes of the federal revenue acts. See Helvering v. Clifford, 309 U. S. 331. To hold that a different result necessarily obtains where the transfer is made or the trust is created as part of a property settlement attendant on a divorce would be to hold that for purposes of the federal income tax the marital obligation of the husband to support his wife cannot be discharged. But whether or not it can be depends on state law. For other purposes, local law determines the status of the parties and their property after a decree dissolving the matrimonial bonds. See Barrett v. Failing, 111 U. S. 523. And while the federal income tax is" } ]

[ { "docid": "23601151", "title": "", "text": "both of them. Each appealed to the Board of Tax Appeals. At the hearing the Commissioner contended that the payments were income of petitioner. The Board upheld that contention. 42 B. T. A. 91. The Circuit Court of Appeals affirmed the judgment of the Board, one judge dissenting. 120 F. 2d 228. We granted the petition for certiorari because of the manner in which that court applied the rule of Helvering v. Fitch, 309 U. S. 149, and Helvering v. Leonard, 310 U. S. 80, in case the ex-wife rather than the husband was sought to be taxed on alleged alimony payments. The Circuit Court of Appeals reached the conclusion that petitioner was liable by the following line of reasoning. The determination of the Commissioner that the monthly payments were income of petitioner was presumptively correct; the burden to show error rested on petitioner. Welch v. Helvering, 290 U. S. 111, 115. Error might be shown by submitting “clear and convincing proof” (Helvering v. Fitch, supra, p. 156) that the payments were made pursuant to a continuing obligation of her former husband to provide for her support, so as to make the rule of Douglas v. Willcuts, 296 U. S. 1, applicable. The burden of establishing error is not sustained by a divorced wife merely by showing that an obligation of her former husband might have continued despite the divorce. Since it is doubtful and uncertain under Texas law whether petitioner’s former husband was discharged of his marital obligation by the settlement in question, petitioner failed to show that the presumptively correct determination that she was liable was erroneous. We do not think that that was a correct application of the rule of the Fitch and Leonard cases. Those cases hold that the income is taxable to the former husband, not only where it is clear that payments to his ex-wife were made pursuant to a continuing liability created by his contract or by local law, but also where his undertaking or local law makes that question doubtful or uncertain. Those cases, like Douglas v. Willcuts, supra, involved situations where" }, { "docid": "17434985", "title": "", "text": "315 U. S. 543, in which the Court carefully pointed out that in the Leonard case and the cases of Helvering v. Fitch, 309 U. S. 149, and Helvering v. Fuller, 310 U. S. 69, there were involved so-called alimony trusts, and then said: But where, as here, the settlement appears to be absolute and outright and on its face vests in the wife the indicia of complete ownership, it will be treated as that which it purports to be, in absence of evidence that it was only a security device for the husband’s continuing obligation to support. * * * In the instant case there is no reason apparent on the record to question the validity of the transfer of absolute ownership of the stock in question to the wife or to suppose that she held title to it only as security or pledge for the fulfillment of petitioner’s obligation. On the contrary, it would seem that this obligation was discharged pro tanto by the transfer to her of the stock. It is significant that even after the remarriage of petitioner and his divorced wife the latter continued to be absolute owner of the stock, thus indicating that she did not hold the stock merely as security. Respondent contends that petitioner is taxable on this “amount of $2,400 [sic] by virtue of section 22 (a) of the Revenue Act of 1938.” We are not aware of any cases construing this section which hold that individual A is taxable on income received by individual B which is derived from property of which B is the absolute owner, though the property is obtained from A by gift or in satisfaction of some obligation ; and we are not disposed to extend the application of this section to such a result. If the transfer of absolute ownership of the property is valid, the income thereafter derived from the property is taxable to the transferee, who is then the owner of both the property and the income; and the motive or purpose of the transfer is immaterial. In the comprehensive article “Five Years" }, { "docid": "10991621", "title": "", "text": "as the gift to be valued, the amounts in question in each instance being 13,000 shares of Montgomery Ward and 8,000 shares of Gypsum. The respondent argues that the petitioner’s donation should be divided into four gifts, one each to his two daughters and their respective husbands, the four being the beneficiaries of the trusts. Respondent cites Helvering v. Hutchings, 312 U. S. 393; Lawrence C. Phipps, 43 B. T. A. 1010; affd., 127 Fed. (2d) 214, and other cases to support his position. Respondent’s position that four gifts are presented for valuation is well fortified both in the law (Helvering v. Hutchings, supra; United States v. Pelzer, 312 U. S. 399) and in the provisions of the trust instruments themselves. The trust agreement referring to petitioner’s daughter Arla and her husband specifically provided that the “Settlor desires to create certain trusts for the use and benefit of his daughter, Aela Avery McMillan, and her husband, William Benton McMillan, and the other beneficiaries hereinafter named or described, upon the terms and conditions hereinafter set forth.” The agreement further provided: Fiest: The Trustees shall divide the trust estate into two separate trusts, one of the trusts to consist of one-half (%) of the trust estate to be held by the Trustees for the benefit of Settlor’s daughter, Aela Avert McMillan, and one of the trusts to consist of one-half (%) of the trust estate to be held by the Trustees for the benefit of William Benton McMillan, the husband of Settlor’s daughter, Arla Avert McMillan. The agreement proceeded to provide that: 1. The Trustees shall pay over and distribute to the Settlor’s daughter, Aela Avert McMillan, so long as she shall live, all of the net income derived from that certain trust consisting of one-half (%) of the trust estate so held by the Trustees for her benefit. * * * with similar provision for the payment to William Benton McMillan so long as he shall live of all of the net income derived “from that certain trust consisting of one-half (y2) of the trust estate so held by the Trustees" }, { "docid": "20743708", "title": "", "text": "thereafter to change by the court. Helvering v. Fitch, 309 U. S. 149; Helvering v. Leonard, 310 U. S. 80; Helvering v. Fuller, 310 U. S. 69; Arthur Letts, Jr., 41 B. T. A. 1172. We do not agree with the broad position taken by respondent that a transfer under such circumstances and without donativo intent may be subject to gift tax. As the Second Circuit-said in Commissioner v. Hyde, 82 Fed. (2d) 174, in answer to an argument that a trust established for the benefit of a wife under somewhat similar circumstances was a gift, “to hold that the trust was established as a voluntary gift * * * would be to close one’s eyes to the realities.” Respondent contends, nevertheless, that no value is established for the wife’s right to maintenance and support, in satisfaction of which the transfer in question was made. From this premise he argues that the entire value of the transferred property and money was taxable as a gift within the literal wording of section 503, sufra. Again we do not agree. The very fact that the attorneys representing petitioner’s wife in dealing at arm’s length with his attorneys were able to exact a payment of $222,643 in settlement of his obligation is persuasive evidence to us of the value of her right. The amount which the court, in the absence of the agreement, would have been called upon to award to petitioner’s wife from his estate would have been based upon his income and the station in life in which he would reasonably be required to maintain his wife. The net income of petitioner for the 10 consecutive years ending with that in which the settlement occurred, averaged $110,000 for each year. At the time the settlement was effected, his income was increasing and the amount paid was little more than his net income for the current year. Thus, not onlv was the contested payment made as a result of a settlement negotiated at arm’s length in which an adequate consideration will be presumed (Commissioner v. Mesta, 123 Fed. (2d) 986), but the" }, { "docid": "20761848", "title": "", "text": "owner of the property, who was the donee, not the donor * * *. Petitioner, in contending that the principles laid down in the Horst case have no application here, stresses the difference between a bond carrying a definite commitment for the payment of interest and a share of stock upon which there is no commitment or obligation to pay a dividend until one is declared, and emphasizes the fact that in the instant proceeding the assignment was made before the dividend was declared. We do not think these differences are important where the income-producing property itself was not assigned. In Harrison v. Schaffner, 312 U. S. 579, the Supreme Court again applied the principles of the Horst case and held that where a life beneficiary of a testamentary trust in December 1929 assigned to certain of her children specified amounts in dollars from income of the trust for the year following the assignment, and made-a like assignment to her children and a son-in-law in November 1930, the assigned income, which was paid by the trustees to the several assignees, was taxable as such to the life beneficiary. In the course of its opinion the Supreme Court said: Taxation is a practical matter and those practical considerations which support the treatment of the disposition of one’s income by way of gift as a realization of the income to the donor are the same whether the income be from a trust or from shares of stock or bonds which he owns. [Italics supplied.] Under the first issue we held petitioner taxable on the dividends from the 1,000 shares of Climax Molybdenum Co. stock on the ground that although she had transferred such shares to the John Arthur Hyman trust she retained sufficient powers to leave her the virtual owner of the shares. Under the present issue petitioner at all times here materially remained the owner of the tree which produced the fruit. We hold that the $13,000 in question is taxable to petitioner. Helvering v. Horst, supra; Helvering v. Eubank, 311 U. S. 122; Harrison v. Schaffner, supra. Cf. Commissioner v." }, { "docid": "16162480", "title": "", "text": "the trust instrument, the accumulated income, if any, and the corpus were payable absolutely, share and share alike, to the beneficiaries at the termination of the trust — that is, on June 20, 1964, with respect to the share of Audrey Lucile Taylor, and when the age of 25 years was attained, with respect to the other beneficiaries. These provisions of the Taylor trust instrument governing the distribution of the income and the corpus of the trust estate, like the provisions governing the management of the trust property, referred to above, are similar to those contained in the trust instrument considered by us in the Leonard case, and here, as there, the grantors retained no power to alter, amend, or revoke, and they reserved no power to direct that the income or principal be paid to beneficiaries other than those named in the trust. Under the authority of the Leonard case, we hold that the petitioner is not taxable with the income here involved under section 22 (a). See also Alice Ogden Smith, 4 T. C. 573; Alex McCutchin, 4 T. C. 1242; and Alma M. Myer, 6 T. C. 77. The instant case is distinguished from the Stockstrom and Funsten cases cited by respondent as the Stochstrom case was distinguished in the Leonard case; i. e., “In the instant proceedings * * * [the trustee] had no powers to cause the shifting of income from one bene ficiary to another such as were present in the Stockstrom or Buck cases.” The respondent in his brief states that under the provision of the trust instrument authorizing use of the net income for the education, maintenance, and support of the beneficiaries the petitioner could use the entire income of the trust for that purpose and thereby relieve himself of his legal obligation to support his children, and that therefore the entire net income of the trust for the taxable year is taxable to him under Helvering v. Stuart, 317 U. S. 154. By paragraph 8 of the trust instrument, the petitioner, as trustee, had the power to use so much of" }, { "docid": "22291850", "title": "", "text": "Mr. Justice Douglas delivered the opinion of the Court. This case involves the question of the taxability to the grantor under the Revenue Act of 1928 (45 Stat. 791) of income from a so-called alimony trust which is payable to his divorced wife. We granted certiorari because of the probable conflict of the decision below with Douglas v. Willcuts, 296 U. S. 1, and Helvering v. Fitch, 309 U. S. 149. In 1928 respondent’s wife instituted suit in New York-for an absolute divorce. On June 4, 1929, while that suit was pending, respondent and his wife entered into a separation agreement and, together with a corporate trustee, executed a trust agreement. Under the latter respondent contributed securities and cash of $650,000, which included $400,000 principal amount of 6% first mortgage bonds of an oil company. Respondent guaranteed the “payment when due of the principal and interest” on those bonds; and on notice of any default in the payment of any interest on or principal of them, he agreed to substitute cash or securities with a “market value equal to” the principal, and cash sufficient to cover any accrued interest.' The trust was irrevocable except that (1) it could be amended by respondent and his wife; and (2) respondent retained a limited power of substitution as respects certain bank stock which was part of the corpus. The trustee agreed to use “reasonable efforts to consult” with respondent with respect to “the character of the investments” though it was not bound to follow his advice. Respondent retained no right to either the corpus or the income, or any part thereof, except as indicated above. The net income was to be paid as follows: $5000 a year to each of three children; the remaining amount to the wife during her life for her maintenance and support, and in her sole discretion for the support, maintenance and education of the children. On death of the wife, the corpus was to be held for the children. The separation agreement incorporated the trust agreement by reference; stated that the wife’s income from the trust and from" }, { "docid": "20761845", "title": "", "text": "is taxable under section 22 (a). Thus it will be seen that the decision of the Seventh Circuit in the John Stuart case that section 22 (a) was not applicable is no longer authority on that point. In the instant case we are basing our decision squarely under section 22 (a), and we find nothing in the Supreme Court’s decision in the Stuart case which would throw doubt upon the Second Circuit’s decision in Commissioner v. Buck, supra, which we have already cited, and upon which we rely in support of our decision. We sustain the respondent’s determination upon this issue. It thus becomes unnecessary to decide whether in any event $1,000 of the $2,300 income is taxable to petitioner. We hold the entire $2,300 taxable to petitioner. We consider next the question whether the respondent erred in determining that the dividends in the amount of $13,000 declared and paid after petitioner had assigned to her husband the right to receive all dividends which may be declared and paid between the date of the assignment and December 31,1939, on 10,000 shares of the capital stock of Climax Molybdenum Co. is taxable income to petitioner. The dividends in question were paid to petitioner’s husband in accordance with the assignment executed on December 6, 1939. The respondent as authority for his determination cited and relies upon Helvering v. Horst, 311 U. S. 112. Petitioner contends that Blair v. Commissioner, 300 U. S. 5, is controlling. In the Horst case, the owner of negotiable bonds detached from them negotiable interest coupons shortly before their due date and delivered them as a gift to his son, who in the same year collected them at maturity. The Supreme Court held that the interest when collected by the son was taxable income to the father, who was the owner of the bonds. In the Blair case, the beneficiary of a trust had assigned a share of the income to another for life without retaining any form of control over the interest assigned. The Supreme Court construed the assignment as a transfer in praesenti to the donee" }, { "docid": "9720538", "title": "", "text": "Commissioner, 288 U. S. 436; Commissioner v. Estate of Holmes, supra; Union Trust Co. of Pittsburgh v. Driscoll, 138 Fed. (2d) 152; certiorari denied, 321 U. S. 764. Petitioners argue that Helvering v. Helmholz, 296 U. S. 93, prevents this conclusion. We do not agree. In that case the respondent proposed to include, as here, the value of remainders only in an inter vivos trust. The right to terminate was given by the trust to “all of the then beneficiaries, other than testamentary appointees.” (Italics supplied.) The settlor was the beneficiary of the income for her life. She could appoint the income for the duration of the trust following her life by will, and in the absence of such appointment the income went to her issue. • The beneficiaries of the remainders were to be the income beneficiaries when the trust terminated. The appointees by will could not, under the trust, take the remainders. So, in that case, the termination could be brought about only by all the beneficiaries in the remainders who were living when the trust terminated. Here the grandchildren, who were the remaindermen under the trust, were given no rights in its termination. In other words only the settlor’s wife, the principal life beneficiary, and the children, the secondary life beneficiaries, or the survivors of them, had that right. And in the event of termination, and only in such event, could those life beneficiaries take remainder interests. Moreover, in the Helmholz case, although the settlor, as a beneficiary, was included among those to whom the right to terminate was jointly granted, the right of beneficiaries surviving her death to terminate continued. See Commissioner v. Allen, 108 Fed. (2d) 961; certiorari denied, 309 U. S. 680. Here the converse is true. The settlor was a necessary party to any termination. Thus the right to terminate ended with his death. See Chickering v. Commissioner, 118 Fed. (2d) 254; certiorari denied, 314 U. S. 636. There is another difference which distinguishes this case from the Helmholz case. The Supreme Court there held that, under pertinent Wisconsin law, the termination of" }, { "docid": "20761838", "title": "", "text": "OPINION. Black, Judge: We shall first consider the question of whether the respondent erred in determining that the income of the John Arthur Hyman trust in the amount of $2,300 is taxable to petitioner under section 22 (a) of the Internal Eevenue Code. The amendments thereto by the Public Salary Tax Act of 1939 are not here material. The answer to this inquiry depends upon whether the situation here presented falls within or without the ambit of Helvering v. Clifford, 309 U. S. 331. At the hearing counsel for the respondent made the statement that the $2,300 of income in question under this issue “may also be taxable to the petitioner” under section 166 or 167 of the Code, but in his brief he discussed only the taxability under section 22 (a) and stated “that any further possibilities under section 166 or 167 need not be discussed.” In any event the respondent contends that $1,000 of the $2,300 income representing the special dividend of $1 per share declared prior to the creation of the John Arthur Hyman trust but payable thereafter is taxable to petitioner under Helvering v. Horst, 311 U. S. 112. Petitioner, in contending that the situation here presented falls outside the ambit of the Clifford case, relies strongly upon Commissioner v. Jonas, 122 Fed. (2d) 169, saying in her brief that this case “is almost on all fours with the case at bar.” We think the respondent’s determination must be sustained upon the authorities of Helvering v. Clifford, supra, and Commissioner v. Buck, 120 Fed. (2d) 775. In the latter case the settlor conveyed certain shares of stock to a bank, as trustee, to pay the income to his wife for life, and on her death, to pay the income and ultimately the principal to his children or their descendants. He retained a power “to alter or amend in any respect whatsoever” the provisions relating to the distribution of the income or principal, except that this power could not be exercised for his own benefit. In the event that a beneficiary predeceased him, the share held for" }, { "docid": "20761846", "title": "", "text": "and December 31,1939, on 10,000 shares of the capital stock of Climax Molybdenum Co. is taxable income to petitioner. The dividends in question were paid to petitioner’s husband in accordance with the assignment executed on December 6, 1939. The respondent as authority for his determination cited and relies upon Helvering v. Horst, 311 U. S. 112. Petitioner contends that Blair v. Commissioner, 300 U. S. 5, is controlling. In the Horst case, the owner of negotiable bonds detached from them negotiable interest coupons shortly before their due date and delivered them as a gift to his son, who in the same year collected them at maturity. The Supreme Court held that the interest when collected by the son was taxable income to the father, who was the owner of the bonds. In the Blair case, the beneficiary of a trust had assigned a share of the income to another for life without retaining any form of control over the interest assigned. The Supreme Court construed the assignment as a transfer in praesenti to the donee of a life interest in the corpus of the trust property and held in consequence that the income thereafter paid to the donee was taxable to him and not the donor. We agree with the respondent that the principles enunciated in the Horst case are controlling, since petitioner continued to own the income-producing property. The Supreme Court in the Horst case distinguished the Blair case upon that ground. In this connection the Supreme Court said: * * * In the circumstances of that case [the Blair case] the rignt to income from the trust property was thought to he so identified with the equitable ownership of the property from which alone the beneficiary derived Ibis right to receive the income and his power to command disposition of it that a gift .of the income by the beneficiary became effective only as a gift of his ownership of the property producing it. Since the gift was deemed to be a gift of the property the income from it was held to be the income of the" }, { "docid": "9922385", "title": "", "text": "* * And we there held that transfers in trust in 1922 and 1932 were completed gifts, notwithstanding that some of the trust income had subsequently been taxed to the grantor under the Clifford rationale. On the authority of the Hogle case, we must sustain the respondent as to the first issue, and we accordingly approve his determination that the 1938 and 1939 transfers had absorbed $22,595.95 of petitioner’s $40,000 specific exemption, leaving $17,404.05 available for use in the taxable year. The final question concerns the valuation to be placed upon petitioner’s gift of December 31, 1941, that is the gift, from and after March 31, 1944, of the trust income to her husband for his lifetime, coupled with the power given the trustee to pay to her husband from the corpus not in excess of $3,000 in any calendar year, as the trustee in his discretion might think necessary for the husband’s comfortable •support and maintenance. Respondent has valued the gift at $99,-459.37, representing the value of the right to receive $3,000 a year after March 30,1944, from principal, plus interest on the diminishing fund. Petitioner contends that only the value of the life income should be subjected to the tax; that the Commissioner’s method of valuation is unrealistic because it treats as an absolute certainty the invasion of corpus to the extent of $3,000 a year, whereas the corpus may never be invaded; that if and when invasion becomes necessary, gifts will then be complete and subject to the tax in the years distributed. Petitioner’s argument, without doubt, is an impressive one and has a strong practical appeal. Nevertheless, we think that decision of the instant issue is controlled by the principles enunciated by the Supreme Court in Robinette v. Helvering, 318 U. S. 184, and Smith v. Shaughnessy, 318 U. S. 176, which require us to sustain the respondent. In the Smith case the Court said that the “essence of a gift by trust is the abandonment of control over the property put in trust.” Here the petitioner, by her transfer in trust, abandoned all control over" }, { "docid": "20761839", "title": "", "text": "Arthur Hyman trust but payable thereafter is taxable to petitioner under Helvering v. Horst, 311 U. S. 112. Petitioner, in contending that the situation here presented falls outside the ambit of the Clifford case, relies strongly upon Commissioner v. Jonas, 122 Fed. (2d) 169, saying in her brief that this case “is almost on all fours with the case at bar.” We think the respondent’s determination must be sustained upon the authorities of Helvering v. Clifford, supra, and Commissioner v. Buck, 120 Fed. (2d) 775. In the latter case the settlor conveyed certain shares of stock to a bank, as trustee, to pay the income to his wife for life, and on her death, to pay the income and ultimately the principal to his children or their descendants. He retained a power “to alter or amend in any respect whatsoever” the provisions relating to the distribution of the income or principal, except that this power could not be exercised for his own benefit. In the event that a beneficiary predeceased him, the share held for that beneficiary was to return to Buck, the settlor. Buck also retained the power to remove the trustee and reserved the right to vote any stock or to direct the trustee how to vote it. In holding that the settlor was taxable on the income of the trust under section 22 (a) of the Revenue Acts of 1932 and 1934 (identical with the material provisions of the same section of the Code set out in footnote 1) the Court enumerated the significant factors to be considered as follows: That the donees are members of the donor’s family, of which he is the head; that he has “income in excess of normal needs”; that, during his life, he is unrestricted as to the disposition of any part of the corpus or income, excepting that he may not divert any portion for his personal use; thát, while he lives, he has entire control of the management of the corpus, and, at his pleasure, may remove the trustee and appoint another. In the instant proceeding the named income" }, { "docid": "22459655", "title": "", "text": "where in terms of local divorce law we can see only attenuated ones. This is not to imply that Congress lacks authority to design a different statutory scheme applying uniform standards for the taxation of income of the so-called alimony trusts. A somewhat comparable statute taxing to the grantor income from a trust applied to the payment of premiums upon insurance policies on his life was upheld in Burnet v. Wells, 289 U. S. 670. But the reach of Congressional power is one thing; an interpretation of a federal revenue act based on local divorce law, quite another. For the reasons we have stated, it seems clear that local law and the trust have given the respondent pro tanto a full discharge from his duty to support his divorced wife and leave no continuing obligation, contingent or otherwise. Hence under Helvering v. Fitch, 309 U. S. 149, income to the wife from this trust is to be treated the same as income accruing from property after a debtor has transferred that property to his creditor in full satisfaction of his obligations. III. One other observation is pertinent. Though the divorce decree extinguishes the husband’s preexisting duty to support the wife, and though no provision of the trust agreement places such obligation on him, that agreement may nevertheless leave him with sufficient interest in or control over the trust as to make him the owner of the corpus for purposes of the federal income tax. Helvering v. Clifford, supra. As we have seen, respondent did retain considerable control over the trusteed shares. But that was not the basis for the assessment of the deficiency by the Commissioner. It was not passed upon by the Board of Tax Appeals or the Circuit Court of Appeals. It was not included in the petition for certiorari among the errors to be urged or the reasons for granting the writ. Nor did petitioner brief or argue the point here. Hence we do not pass on the applicability of the rule of Helvering v. Clifford, supra, to these facts. Cf. Helvering v. Wood, 309 U. S." }, { "docid": "23601166", "title": "", "text": "divorce court might add to the husband’s personal obligation does not alter the result. As in the Fuller case, the transfer of property to the wife might result only in a partial discharge of the husband’s obligation. If the husband undertook, or was directed, to make other payments, he might be taxable on them. But the fact that he is taxable on a part of the payments received by the wife does not necessarily make him taxable qn all. Helvering v. Fuller, supra, p. 73. Hence the statement in Helvering v. Fitch, supra, 309 U. S. at p. 156, that it must be clear “that local law and the alimony trust have given the divorced husband a full discharge and leave no continuing obligation however contingent” is to be read in light of the fact that the alimony trust in that case was deemed to be a mere security device for the husband’s continuing obligation to support. For the husband was relieved from payment of the tax on income from the property settlement in the Fuller case though he had a continuing obligation to pay the wife $40 a week. If the rule of Douglas v. Willcuts, supra, is not to be extended to this type of case, then, on the showing which has been made, the husband would have sustained his burden in case the Commissioner had proceeded against him. Cf. Mitchell v. Commissioner, 38 B. T. A. 1336. Clearly, then, the wife may not escape. Such cases as Helvering v. Horst, 311 U. S. 112, Helvering v. Eubank, 311 U. S. 122, and Harrison v. Schaffner, supra, are not opposed to this result. Those cases dealt with situations where the taxpayer had made assignments of income from property. He was held taxable on the income assigned by reason of the principle “that the power to dispose of income is the equivalent of ownership of it and that the exercise of the power to procure its payment to another, whether to pay a debt or to make a gift, is within the reach” of the federal income tax law." }, { "docid": "20374693", "title": "", "text": "income from the petitioner’s one-sixth share in the iron ore lands. Substantially, the only income received by the petitioner’s husband, Walter Beck, in the taxable years was derived from the trusts. The problem presented by the trusts is a familiar one. It has been expressed in various ways but in substance it requires a decision whether, in reality, the income from tlie trust created by the taxpayer-grantor should properly be considered income to the grantor or to the trust beneficiary. It is generally accepted that, although the precise situation is not governed by statute, the problem is within the purview of section 22 (a), which provides for the inclusion of income of “whatever kind and in whatever form paid.” Tlie respondent relies chiefly on the following cases: Lucas v. Earl, 281 U. S. 111; Burnet v. Leininger, 285 U. S. 136: Helvering v. Clifford, 309 U. S. 331; Helvering v. Horst, 311 U. S. 112; Harrison v. Schaffner, 312 U. S. 579; and Commissioner v. Tower, 327 U. S. 280. In our opinion, respondent extends the force of his cited cases to a degree which encroaches upon the authority of Blair v. Commissioner, 300 U. S. 5. In that case, the beneficiary of a trust assigned for' the period of his life, a part, of the trust income. It was held that the income so assigned was not taxable to the assignor. In the solution of this problem the courts have generally based the result on either' the nature of the property transferred (i. e.,. assignment of future earnings held taxable to assignor in Helvering v. Horst) or the period, for which the property was transferred. In Harrison v. Schaffner, the life beneficiary of a trust assigned specified amounts of income for one year at a time. The income was held taxable to the donor, the Court saying “We think that the gift by a beneficiary of a trust of some part of the income derived from the trust property for the period of a day, a'month, or a year involves no such substantial disposition of the trust property *" }, { "docid": "17434984", "title": "", "text": "support (the obligation not being finally satisfied by the creation of the trust), it is apparent that the situation is similar, for all practical purposes, to the first hypothetical case in which no trust device was used. But, where the income-producing property is not held by the tax payer-husband or by a trust created by him for the purpose of holding the property and paying over the income to the wife, as in this case where the income-producing property is itself given by absolute gift to the wife in pro tanto satisfaction of the obligation, we are unable to spell out any justification for taxing the income from the property to the husband, rather than to the wife who has received the income by virtue of her ownership of the property, even if the property itself was received by her in satisfaction of her husband’s obligation to support her. This conclusion would seem to be in accord with the latest opinion of the Supreme Court on this subject in the case of Pearce v. Commissioner, 315 U. S. 543, in which the Court carefully pointed out that in the Leonard case and the cases of Helvering v. Fitch, 309 U. S. 149, and Helvering v. Fuller, 310 U. S. 69, there were involved so-called alimony trusts, and then said: But where, as here, the settlement appears to be absolute and outright and on its face vests in the wife the indicia of complete ownership, it will be treated as that which it purports to be, in absence of evidence that it was only a security device for the husband’s continuing obligation to support. * * * In the instant case there is no reason apparent on the record to question the validity of the transfer of absolute ownership of the stock in question to the wife or to suppose that she held title to it only as security or pledge for the fulfillment of petitioner’s obligation. On the contrary, it would seem that this obligation was discharged pro tanto by the transfer to her of the stock. It is significant" }, { "docid": "10246170", "title": "", "text": "the husband. Albert C. Whitaker, 33 B. T. A. 865; Helvering v. Brooks, 82 Fed. (2d) 173. See also Helvering v. Coxey, 297 U. S. 694, reversing 79 Fed. (2d) 661; Helvering v. Stokes, 296 U. S. 551, reversing 79 Fed. (2d) 256. In several recent cases, however, this proposition has been limited, where it appeared that the legal obligation of the husband to support and maintain his wife had been terminated, under the law of a particular state, by divorce or by subsequent remarriage of the wife; Harry S. Blumenthal, 34 B. T. A. 994; aff'd., — Fed. (2d) — (June 28, 1937); Henry Oliver Rea, 35 B. T. A. 1132; Edward T. Hall, 36 B. T. A. 398. And in these cases it was held that the income of the trust distributed to the wife after divorce or remarriage is not taxable to the husband. Also, it is now held that income from trusts created for the support of minor children is taxable to the settlor where he is under a legal duty to support them. Commissioner v. Schweitzer, 296 U. S. 551; Commissioner v. Grosvenor, 85 Fed. (2d) 2. The $400,000 face amount of securities placed in trust in this case was held by the trustee on two trusts; one for the benefit of the wife for life and the other for the benefit of the two children. The corpus of each was $200,000. At the time the trust instrument of August 1, 1930, was executed by petitioner and his wife they had reached an agreement settling their dispute over the proceeds of the sale of the Simpson’s stock. The trust instrument refers to the fact that an agreement has been reached in connection with certain claims made by the wife. The settlement agreement of the same date refers to the creation of the trust. The settlement agreement provides that “in consideration of the settlement of said stocks and securities [in trust] and .of certain other good and valuable consideration” the wife accepts the trust provisions in settlement of her claims in connection with the Simpson’s stock" }, { "docid": "23601165", "title": "", "text": "the power to remake this property settlement after it was consummated. Hence there is no ground for concluding that this settlement, which is absolute on its face, is mere security for an obligation of a husband to support his wife. “The correct ground for refusing to tax such income to the husband is merely that it is the lump sum which discharges him and not the future income received by the wife.” Paul, Eive Years with Douglas v. Willcuts, 53 Harv. L. Rev. 1, 17, note 44. We noted in Helvering v. Fuller, supra, p. 74, that outright transfers of property to the wife, though providing for her maintenance and support, were no different from cases “where any debtor, voluntarily or under the compulsion of a court decree, transfers securities, a farm, an office building, or the like, to his creditor in whole or partial payment of his debt.” We do not think that it would be proper to extend the rule of Douglas v. Willcuts, supra, to such a situation. The possibility that the divorce court might add to the husband’s personal obligation does not alter the result. As in the Fuller case, the transfer of property to the wife might result only in a partial discharge of the husband’s obligation. If the husband undertook, or was directed, to make other payments, he might be taxable on them. But the fact that he is taxable on a part of the payments received by the wife does not necessarily make him taxable qn all. Helvering v. Fuller, supra, p. 73. Hence the statement in Helvering v. Fitch, supra, 309 U. S. at p. 156, that it must be clear “that local law and the alimony trust have given the divorced husband a full discharge and leave no continuing obligation however contingent” is to be read in light of the fact that the alimony trust in that case was deemed to be a mere security device for the husband’s continuing obligation to support. For the husband was relieved from payment of the tax on income from the property settlement in the" }, { "docid": "20374692", "title": "", "text": "will be necessary to consider the 1932 trust along with the trusts of 1937 and 1938 for if the decision as to the 1932 trust is that the income therefrom is taxable to petitioner, then the 1937 income from that trust paid in 1938 is taxable to petitioner in the latter year inasmuch as petitioner is on a cash basis and could not have constructively received it in the prior year. On November 22, 1937, the petitioner transferred to herself and Watson Washburn, as trustees, an undivided one-twentieth interest of her one-sixtli interest in all the leased iron ore lands upon trust to pay over the net income to the petitioner’s husband, Walter Beck, during his life and upon his death to convey the principal thereof to the petitioner. On January 8,1938 (the date she revoked the 1932 trust), petitionei-created another trust with terms the same as those of the 1937 trust except that it was for an undivided four-twentieths interest. Thus under the terms of the two trusts the husband received five-twentieths of the income from the petitioner’s one-sixth share in the iron ore lands. Substantially, the only income received by the petitioner’s husband, Walter Beck, in the taxable years was derived from the trusts. The problem presented by the trusts is a familiar one. It has been expressed in various ways but in substance it requires a decision whether, in reality, the income from tlie trust created by the taxpayer-grantor should properly be considered income to the grantor or to the trust beneficiary. It is generally accepted that, although the precise situation is not governed by statute, the problem is within the purview of section 22 (a), which provides for the inclusion of income of “whatever kind and in whatever form paid.” Tlie respondent relies chiefly on the following cases: Lucas v. Earl, 281 U. S. 111; Burnet v. Leininger, 285 U. S. 136: Helvering v. Clifford, 309 U. S. 331; Helvering v. Horst, 311 U. S. 112; Harrison v. Schaffner, 312 U. S. 579; and Commissioner v. Tower, 327 U. S. 280. In our opinion, respondent extends" } ]

[ { "docid": "408612", "title": "", "text": "limited” issue of whether all asbestos products cause mesothelio-ma. The district court, in responding to plaintiffs’ objection, correctly noted: [Ijt’s for the jury. Before the plaintiff can recover, the jury has to be convinced by a preponderance of the evidence that there was — that the asbestos products that were made by the defendant, manufactured by the defendant or distributed by the defendant did cause the cancer or the disease, whatever it may have been. App. at 350. The court’s statement implicitly referred to where the burden of proof should lie in a case such as this. The plaintiffs bore the burden of proving, by a preponderance of the evidence, that Keene’s products were a substantial contributing factor in the cause of Thomas’ illness and death. To establish proximate cause, plaintiffs relied on their experts’ testimony that all asbestos causes mesothelioma. Dr. Gee’s testimony, which attacked the theory put forth by plaintiffs’ experts, was clearly relevant and permissible to rebut plaintiffs’ theory of causation. Under Fed.R.Evid. 401, evidence is relevant if it has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” As noted in the Advisory Committee’s Note to Rule 401, “[rjelevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.” Because the rule makes evidence relevant “if it has any tendency to prove a consequential fact, it follows that evidence is irrelevant only when it has no tendency to prove the fact.” 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5166, at 74 n. 47 (1978) (emphasis added). Thus the rule, while giving judges great freedom to admit evidence, diminishes substantially their authority to exclude evidence as irrelevant. Id. § 5166, at 74. On this appeal, plaintiffs contend that Dr. Gee’s testimony could not be relevant unless Keene presented evidence as to the actual content of its products. According" } ]

[ { "docid": "22896847", "title": "", "text": "74. Blancha v. Raymark Indus., 972 F.2d 507, 514 (3d Cir.1992). The EEOC argues that the district court correctly excluded the evidence as irrelevant, inasmuch as evidence concerning the reason for the meetings between Spain and Nelson and the resulting rumors does not tend to prove or disprove Spain’s allegations regarding the rumors and that she was subjected to sexual harassment as a result. Appellee’s br. at 15-16. The EEOC contends that even under Spam’s view of the ease, the occurrence of the meetings with Nelson, but not the reasons for the meetings, is significant. Id. at 16. Yet, it is clear that evidence concerning the reasons for the private meetings between Nelson and Spain had a tendency to prove certain elements of Spain’s claims, for the evidence demonstrated why Nelson would have wanted private meetings, as the EEOC regulations prohibited him from borrowing money from subordinates. Furthermore, the reasons for the meetings tend to demonstrate why they were so frequent. More importantly, if a jury knew the reasons for the meetings, it would gain insight into the credibility of Spain’s contention that Nelson did not take any steps to stop the rumors or initiate any other remedial actions after learning about the rumors, for remedial action might have required him to explain his conduct. Consequently, the evidence is relevant to prove that Nelson was at least partially responsible for the development and perpetuation of the false rumors. Inasmuch as under Harris all the germane circumstances should be considered in an evaluation of Spain’s sexually hostile work environment claim, we believe that the district court abused its discretion in ruling that the evidence was inadmissible under Rules 401 and 402. 2. Unfair Prejudice In Blancha, we also discussed Rule 403 and the standards for excluding evidence that substantially is more prejudicial than probative: Fed.R.Evid. 403 states that evidence, even if relevant, may be excluded ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.’ Thus evidence may be excluded when its admission would lead to litigation of collateral issues," }, { "docid": "22896839", "title": "", "text": "who is the object of a rumored affair between himself and a subordinate to “embarrass himself’ by denying the rumors. App. at 31. Yet, without further qualification or explanation, this statement is too broad. As we already have indicated, if the employer knows of the harassment, it is obligated to take prompt remedial action. We do not suggest that Title VII required that Nelson personally deny the rumors. However, assuming that Spain’s allegations regarding the rumors are true, the law did require management personnel to take remedial action. Accordingly, we hold that the district court erred in granting summary judgment to the EEOC predicated on the court’s interpretation of the EEOC’s obligation under Title VII. Overall, we think that it is clear that Spain has established the requirements for a claim of a sexually hostile work environment under Andrews, and that material issues of fact remain for trial. Thus, the district court erred in barring Spain from going forward based on the evidence she intended to offer to prove these claims. While we have predicated our result on Andrews and Harris, we nevertheless will discuss Jew, as it seems to be the only reported case dealing with circumstances similar to those here. The district court first distinguished Jew on the grounds that the supervisor in this ease, Nelson, was not involved in spreading the rumors and was, in fact, an object of them. App. at 34. However, as Spain points out, Jew does not suggest that the supervisor in that case was involved in spreading the rumors, nor did Jew rely on such a consideration. Furthermore, on the record, it could be concluded that Nelson personally was involved in spreading the rumors due to his alleged involvement in creat ing the conditions under which they developed and were perpetuated, and due also to his refusal to take steps to end them. Thus, with respect to this aspect of the district court’s ruling, it appears that the court seized upon a nonexistent distinction between this case and Jew and then applied it improperly to Spain’s allegations. The district court also pointed" }, { "docid": "22896834", "title": "", "text": "at 1482 n. 3. Thus, an employer by its conduct might create conditions which all its employees, without regard for sex, reasonably consider as harassing and yet the employer would not discriminate on the basis of sex. Accordingly, where an employee claims sex discrimination predicated on sexually neutral conduct it may be necessary for the employee to establish that the employer’s motives for its actions were sexual. If the discrimination of which Spain complained was predicated merely on the demands for loans, her case might be of that nature. However, Spam’s allegations are not predicated on sexually neutral conduct. Rather, she alleges that the harassment resulted from the rumors that she was having an affair with Nelson. Thus, the harassment directed against her as a woman had a sexual orientation by its very nature. Overall, we are satisfied that Spain has offered evidence that she suffered intentional discrimination because of sex. The second requirement for demonstrating a sexually hostile work environment is that the discrimination must have been pervasive and regular. Andrews, 895 F.2d at 1482. In determining that Spam’s claim can withstand a motion for summary judgment as to this Andrews element, we note that she has alleged that the rumors developed over a period of several years between 1986 and 1990 and manifested themselves through her continuous interaction with her colleagues and supervisors. Moreover, Nelson’s loan solicitations and the private meetings allegedly occurred throughout this time, continuing in particular after Spain had asked him to put an end to the rumors. Therefore, there is a fact question for trial as to the pervasiveness and regularity of Nelson’s conduct and the impact of the rumors on Spain. Third, the discrimination must have affected Spain detrimentally, the subjective requirement of Andrews, as later recognized in Harris. As we discuss above, Spain has contended that she perceived herself to be subject to an abusive environment as manifested through her co-workers’ and supervisors’ interaction with her. Thus, determination of the particular effect of the rumors on Spain is another question of fact for the jury. Under Andrews, the fourth requirement to demonstrate" }, { "docid": "22896850", "title": "", "text": "distract the jury from focusing on the claim of sexual harassment and would cause the factfinder to be inclined to find a Title VII violation out of a desire to punish the supervisor for his unethical conduct. Appellee’s br. at 16-17. We conclude, however, that the probative value of this evidence is not “substantially outweighed by the danger of unfair prejudice.” We already have discussed the relevance of the evidence to an understanding of why Spain’s co-workers continued to see her privately with Nelson even after she and Nelson knew of the rumors and to an understanding of why Nelson did not take steps to stop the rumors. Indeed, Nelson admits that loans were made on the dates for which Spain has canceled checks, although he denies that he solicited them and offers an alternative explanation. Appellee’s app. at 4-7. Thus, the dispute concerns not whether there were loans, but rather the motivation for them and their frequency. The EEOC contends, in essence, that the evidence would make the jury more likely to turn a breach of ethics into a finding of sexual harassment. “Yet, ‘[vigorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Petruzzi’s IGA Supermarkets, 998 F.2d at 1241 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., — U.S. -, -, 113 S.Ct. 2786, 2798, 125 L.Ed.2d 469 (1993)). Given our cautious approach to Rule 403 exclusions at the pretrial stage, see Petruzzi’s IGA Supermarkets, 998 F.2d at 1240; In Re Paoli R.R. Yard PCB Litig., 916 F.2d 829, 859-60 (3d Cir.1990), cert. denied, 499 U.S. 961, 111 S.Ct. 1584, 113 L.Ed.2d 649 (1991), we hold that the district court abused its discretion in excluding the evidence under Rule 403. C. Dismissal For Failure to Prosecute Spain argues that the district court improperly dismissed the balance of her ease for failure to prosecute after she determined not to go forward with her racial discrimination and retaliation claims following the dismissal of the sexual discrimination and harassment claims. We hold that the district" }, { "docid": "22896853", "title": "", "text": "remaining claims for failure to prosecute. Id. at 52. Spain argues that “because of the court’s clear error in denying the evidence as to the sexual harassment, justice requires reinstatement of the entire Complaint.” Appellant’s br. at 25. She contends that her remaining claims of failure to promote based on race and retaliation are connected closely to the evidence she was not permitted to introduce. Id. Yet as the EEOC points out, and as we have reviewed above, Spain agreed before the district court that the evidence concerning the loans and the failure to correct the rumors was irrelevant to whether she was not promoted on account of her race or whether there was retaliation against her for filing the previous or present complaint. App. at 46-47. While Spain now takes a position contrary to that which she took before the district court, she provides no detailed argument for why the excluded evidence relates to the racial discrimination and retaliation claims. Rather, Spain simply states that proof of her other claims depends upon the jury having knowledge of all of the events. Appellant’s br. at 25. However, the excluded evidence regarding the loans would not tend to prove the remaining claims. Furthermore, even if the EEOC had intended to introduce Spain’s poor relationship with her colleagues allegedly resulting from the loans and rumors as part of its defense to her claims, the EEOC correctly notes that such alleged sex-based evidence would be irrelevant to her racial discrimination and retaliation claims. In any event, even if the excluded evidence was important to the racial discrimination and retaliation claims, Spain was obliged to proceed with the trial notwithstanding the exclusion of the evidence. A party disappointed with a court’s ruling may not refuse to proceed and then expect to obtain relief on appeal from an order of dismissal or default. See Marshall v. Sielaff, 492 F.2d 917 (3d Cir.1974). We recognize that dismissal is a harsh remedy to which a court should resort only in extreme eases, as “the policy of the law is to favor the hearing of a litigant’s claim" }, { "docid": "22896849", "title": "", "text": "thereby creating a side issue which might distract the jury from the main issues. United States v. Dennis, 625 F.2d 782, 797 (8th Cir.1980).... Evidence should be excluded under Rule 403 only sparingly since the evidence excluded is concededly probative. United States v. Terzado-Madruga, 897 F.2d 1099, 1117 (11th Cir.1990). The balance under the rule should be struck in favor of admissibility. Id.; Dennis, 625 F.2d at 797 (8th Cir.1980). Finally, we note that in determining the probative value of evidence under Rule 403, “we must consider not only the extent to which it tends to demonstrate the proposition which it has been admitted to prove, but also the extent to which that proposition was directly at issue in the case.’ United States v. Herman, 589 F.2d 1191, 1198 (3d Cir.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979). Blancha, 972 F.2d at 516. The EEOC argues that the district court properly excluded evidence of the loans under Rule 403 because evidence of Nelson’s questionable conduct would be highly likely to distract the jury from focusing on the claim of sexual harassment and would cause the factfinder to be inclined to find a Title VII violation out of a desire to punish the supervisor for his unethical conduct. Appellee’s br. at 16-17. We conclude, however, that the probative value of this evidence is not “substantially outweighed by the danger of unfair prejudice.” We already have discussed the relevance of the evidence to an understanding of why Spain’s co-workers continued to see her privately with Nelson even after she and Nelson knew of the rumors and to an understanding of why Nelson did not take steps to stop the rumors. Indeed, Nelson admits that loans were made on the dates for which Spain has canceled checks, although he denies that he solicited them and offers an alternative explanation. Appellee’s app. at 4-7. Thus, the dispute concerns not whether there were loans, but rather the motivation for them and their frequency. The EEOC contends, in essence, that the evidence would make the jury more likely to turn a" }, { "docid": "22896841", "title": "", "text": "out that in Jew the rumors suggested that the plaintiff had used a sexual relationship to gain favor, influence and power with an administrative superior. Accordingly, the court asked Spain what evidence there was of that type of situation here. Yet, in so asking, the court ignored Spain’s offer of testimony by a coworker that another employee warned him to stay away from Spain because she could get him in trouble with Nelson due to her relationship with him. Id. at 35-36 (court proceeding of July 15, 1993); id. at 168 (deposition testimony). Thus, there was evidence that the rumors alleged that Spain had attained influence with Nelson through the use of a sexual relationship. As we recount above, however, the attorney for the EEOC argued that this testimony regarding Spain’s alleged influence was based upon her having the “boss’ ears,” as opposed to their having a sexual relationship. Id. at 36. Yet, the record indicates that the EEOC’s recollection of the co-worker’s testimony was incomplete, in that the co-worker testified to the relationship between Spain and Nelson as the reason for Spain’s potential influence over other employees before further explaining that Spain had Nelson’s “ears.” Id. at. 168. Therefore, the district court erred to the extent that it may have accepted the EEOC’s account of the co-worker’s testimony in determining that Spain did not allege that the rumors involved her use of a sexual relationship to attain influence. Furthermore, Spain offered evidence that a supervisor rated her poorly for advancement purposes on account of the rumors and her resulting poor interpersonal relationships. Thus, there was an additional reason for the court not to have distinguished Jew on the grounds that the plaintiff in that case used a sexual relationship to her advantage. Finally, while the district court correctly pointed out that this case does not involve allegations of overt sexual harassment, such as the posting of cartoons and the other activities described in Jew, we have noted that “[ijntimidation and hostility toward women because they are women can obviously result from conduct other than explicit sexual advances.” Andrews, 895" }, { "docid": "22896845", "title": "", "text": "acceptance of loans from Spain on the grounds: (1) that such evidence was not relevant to Spain’s Title VII action under Rule 401, and therefore was inadmissible under Rule 402; and (2) that under Rule 403 the probative value of the evidence was outweighed substantially by the danger it might lead to unfair prejudice, confusion of the issues, and delay. App. at 56-62. The district court granted the EEOC’s motion, stating simply: “So what? If other people interpreted meetings that he had for some other reason in the wrong way, so what?” Id. at 42-43. Although it would thus appear that the district court excluded the evidence on relevancy grounds pursuant to Rule 402, the district court’s ruling is ambiguous, and the parties base their arguments on both Rule 402 and Rule 403. Consequently, we will consider the admissibility standards of Rules 401 and 402, as well as the prejudice standards of Rule 403, as we believe that under either of these standards, the district court abused its discretion in excluding the evidence in question. 1. Relevance We recently discussed Rule 401 and the standards for excluding evidence on relevancy grounds: Under Fed.R.Evid. 401, evidence is relevant if it has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ As noted in the Advisory Committee’s Note to Rule 401, ‘[rjelevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the ease.’ Because the rule makes evidence relevant ‘if it has any tendency to prove a consequential fact, it follows that evidence is irrelevant only when it has no tendency to prove the fact.’ 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5166, at 74 n. 47 (1978) (emphasis added). Thus the rule, while giving judges great freedom to admit evidence, diminishes substantially their authority to exclude evidence as irrelevant. Id. § 5166, at" }, { "docid": "22896843", "title": "", "text": "F.2d at 1485 (quoting Hall v. Gus Constr. Co., 842 F.2d 1010, 1014 (8th Cir.1988)). It would have been erroneous, therefore, for the district court to have barred Spain from going forward on the grounds that she had not alleged overt instances of harassment equivalent to those in Jew. In sum, our analysis of the requirements of Title VII leads us to hold that the district court erred in barring Spain from proceeding with her sexual discrimination and harassment claims. Spain has presented evidence that she was subjected to a sexually hostile work environment in the form of rumors among her colleagues that she was involved in a sexual relationship with her superior. These rumors allegedly developed and continued due to the superior’s conduct. Moreover, they allegedly led her fellow employees to shun her and her supervisors to evaluate her poorly for advancement purposes. Furthermore, the management personnel did not take remedial action to eliminate the rumors. We are satisfied that considering all the circumstances, and given Spain’s unique allegations, she should be allowed the opportunity to prove her claims regarding the sexually hostile work environment she allegedly faced. B. Evidentiary Rulings We now turn to the district court’s exclusion of Spam’s evidence in support of her sexual discrimination and harassment claims, a ruling made in conjunction with the court’s decision to prohibit Spain from proceeding with her claims. While we ordinarily would review an evidentiary ruling before making a substantive decision depending on whether evidence was admitted, we have reversed that order because our discussion of the substance of the sexual discrimination and harassment claims has cast light on the evidentiary question. We review the district court’s admissibility ruling under an abuse of discretion standard, as we are concerned with an issue of the application of rather than the interpretation of the Federal Rules of Evidence. United States v. Console, 13 F.3d 641, 656 (3d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1660, 128 L.Ed.2d 377 (1994); Petruzzi’s IGA Supermarkets, 998 F.2d at 1237. The EEOC’s motion in limine sought to exclude evidence concerning Nelson’s alleged solicitation and" }, { "docid": "22896848", "title": "", "text": "insight into the credibility of Spain’s contention that Nelson did not take any steps to stop the rumors or initiate any other remedial actions after learning about the rumors, for remedial action might have required him to explain his conduct. Consequently, the evidence is relevant to prove that Nelson was at least partially responsible for the development and perpetuation of the false rumors. Inasmuch as under Harris all the germane circumstances should be considered in an evaluation of Spain’s sexually hostile work environment claim, we believe that the district court abused its discretion in ruling that the evidence was inadmissible under Rules 401 and 402. 2. Unfair Prejudice In Blancha, we also discussed Rule 403 and the standards for excluding evidence that substantially is more prejudicial than probative: Fed.R.Evid. 403 states that evidence, even if relevant, may be excluded ‘if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.’ Thus evidence may be excluded when its admission would lead to litigation of collateral issues, thereby creating a side issue which might distract the jury from the main issues. United States v. Dennis, 625 F.2d 782, 797 (8th Cir.1980).... Evidence should be excluded under Rule 403 only sparingly since the evidence excluded is concededly probative. United States v. Terzado-Madruga, 897 F.2d 1099, 1117 (11th Cir.1990). The balance under the rule should be struck in favor of admissibility. Id.; Dennis, 625 F.2d at 797 (8th Cir.1980). Finally, we note that in determining the probative value of evidence under Rule 403, “we must consider not only the extent to which it tends to demonstrate the proposition which it has been admitted to prove, but also the extent to which that proposition was directly at issue in the case.’ United States v. Herman, 589 F.2d 1191, 1198 (3d Cir.1978), cert. denied, 441 U.S. 913, 99 S.Ct. 2014, 60 L.Ed.2d 386 (1979). Blancha, 972 F.2d at 516. The EEOC argues that the district court properly excluded evidence of the loans under Rule 403 because evidence of Nelson’s questionable conduct would be highly likely to" }, { "docid": "22896844", "title": "", "text": "opportunity to prove her claims regarding the sexually hostile work environment she allegedly faced. B. Evidentiary Rulings We now turn to the district court’s exclusion of Spam’s evidence in support of her sexual discrimination and harassment claims, a ruling made in conjunction with the court’s decision to prohibit Spain from proceeding with her claims. While we ordinarily would review an evidentiary ruling before making a substantive decision depending on whether evidence was admitted, we have reversed that order because our discussion of the substance of the sexual discrimination and harassment claims has cast light on the evidentiary question. We review the district court’s admissibility ruling under an abuse of discretion standard, as we are concerned with an issue of the application of rather than the interpretation of the Federal Rules of Evidence. United States v. Console, 13 F.3d 641, 656 (3d Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1660, 128 L.Ed.2d 377 (1994); Petruzzi’s IGA Supermarkets, 998 F.2d at 1237. The EEOC’s motion in limine sought to exclude evidence concerning Nelson’s alleged solicitation and acceptance of loans from Spain on the grounds: (1) that such evidence was not relevant to Spain’s Title VII action under Rule 401, and therefore was inadmissible under Rule 402; and (2) that under Rule 403 the probative value of the evidence was outweighed substantially by the danger it might lead to unfair prejudice, confusion of the issues, and delay. App. at 56-62. The district court granted the EEOC’s motion, stating simply: “So what? If other people interpreted meetings that he had for some other reason in the wrong way, so what?” Id. at 42-43. Although it would thus appear that the district court excluded the evidence on relevancy grounds pursuant to Rule 402, the district court’s ruling is ambiguous, and the parties base their arguments on both Rule 402 and Rule 403. Consequently, we will consider the admissibility standards of Rules 401 and 402, as well as the prejudice standards of Rule 403, as we believe that under either of these standards, the district court abused its discretion in excluding the evidence in question." }, { "docid": "4056157", "title": "", "text": "tend to undermine or rehabilitate the credibility of the witnesses who will testify. Saltzburg at § 401.02[8]. So too, however, are background facts that, although they may not prove elements of the claims and defenses, and may not even be disputed, nonetheless routinely are admitted to help the fact finder understand the issues in the case and the evidence introduced to prove or disprove them. Fed.R.Evid. 401 advisory committee’s note. It is important to recognize that relevance is not a static concept; evidence is not relevant or irrelevant, occupying some rigid state of all or nothing. Saltzburg at § 401.02[11], Instead, “[r]elevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the case.” Fed.R.Evid. 401 advisory committee’s note. As recognized by Federal Rule of Evidence 105, evidence may be admissible for one purpose, but not another, or against one party, but not another. Therefore, it is important for the proponent of the evidence to have considered all of the potential purposes for which it is offered, and to be prepared to articulate them to the court if the evidence is challenged. This point is particularly significant, as discussed below, when considering hearsay objections, where disputed evidence may be inadmissible hearsay if offered for its substantive truth, but admissible if offered for a reason other than its literal truth. In assessing whether evidence is relevant under Rule 401, it also is important to remember that there is a distinction between the admissibility of evidence, and the weight to which it is entitled in the eyes of the fact finder, as Rule 104(e) instructs. To be relevant, evidence does not have to carry any particular weight—it is sufficient if it has “any tendency” to prove or disprove a consequential fact in the litigation. Whether evidence tends to make a consequential fact more probable than it would be without the evidence is not a difficult showing to make. Fed.R.Evid. 401 advisory committee’s note; Saltzburg at § 401.02[1] (“To be relevant it is enough that the" }, { "docid": "23564629", "title": "", "text": "have shown Gibson’s propensity for truthfulness. Wilmington, on the other hand, argues that it never put Gibson’s character into question but rather sought only to. prove that he was dishonest in his dealings with his supervisor on July 16, 1999, the day he called in sick. [22] A District Court’s evidentiary rulings are reviewed for abuse of discretion. See Johnson v. Elk Lake Sch. Dist., 283 F.3d 138, 145 n. 2 (3d Cir.2002) (citing Abrams v. Lightolier Inc., 50 F.3d 1204, 1213 (3d Cir.1995)). The definition of relevant evidence is very broad. Under Fed. R.Evid. 401, “ ‘[r]elevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” We have held that Rule 401 “does not raise a high standard.” Hurley v. Ail. City Police Dept., 174 F.3d 95, 109-110 (3d Cir.1999). We have also held that “evidence is irrelevant only when it has no tendency to prove [a consequential fact],” and that while Rule 401 gives “judges great freedom to admit evidence, [it] diminishes substantially their authority to exclude evidence as irrelevant.” Spain v. Gallegos, 26 F.3d 439, 452 (3d Cir.1994) (citations omitted). Among the documents that Gibson wanted to have admitted were Gibson’s last two employee performance reviews, which according to Gibson “reflect acceptable performance and give no indication that he demonstrates any trait consistent with the claim that he was a liar, dishonest and not forthright,” and which supposedly contained “positive evaluations of characteristics of pride, deportment, judgment and cooperation- which make any trait of dishonesty less probable.” Gibson also wanted to introduce letters from the Chief of Police stating that Gibson displayed initiative, dedication, teamwork, and a “can do” attitude as well as letters from the Mayor of Wilmington stating that Gibson displayed dedication, commitment, hard work, courage and good work. Gibson argues that since character was made a central issue in this ease, these documents should have been admitted pursuant to Fed.R.Evid. 405(b) because they tended to show that Gibson" }, { "docid": "22896838", "title": "", "text": "actual or constructive knowledge about the existence of a sexually hostile environment and failed to take prompt and adequate remedial action, the employer will be hable. Katz v. Dole, 709 F.2d [251, 255 (4th Cir.1983) ]. 895 F.2d at 1486. See also Bouton v. BMW of N. Am., 29 F.3d 103, 105-11 (3d Cir.1994). Spain contends that the EEOC took no action to stop the harassment even though managers at three levels recognized the situation she faced: Butler, app. at 340, Nelson, app. at 120, 125, and Spam’s immediate supervisor, Bruce Bagin, app. at 80. In particular, she charges that she informed Nelson of the rumors and asked him to put an end to them, app. at 77, 230, but that he did nothing. App. at 121. Therefore, Spain’s allegations and evidence of her superiors’ knowledge of the environment and their indifference to it are sufficient to withstand a motion for summary judgment as to this element of her claim. In its ruling, the district court stated that Title VII does not require a supervisor who is the object of a rumored affair between himself and a subordinate to “embarrass himself’ by denying the rumors. App. at 31. Yet, without further qualification or explanation, this statement is too broad. As we already have indicated, if the employer knows of the harassment, it is obligated to take prompt remedial action. We do not suggest that Title VII required that Nelson personally deny the rumors. However, assuming that Spain’s allegations regarding the rumors are true, the law did require management personnel to take remedial action. Accordingly, we hold that the district court erred in granting summary judgment to the EEOC predicated on the court’s interpretation of the EEOC’s obligation under Title VII. Overall, we think that it is clear that Spain has established the requirements for a claim of a sexually hostile work environment under Andrews, and that material issues of fact remain for trial. Thus, the district court erred in barring Spain from going forward based on the evidence she intended to offer to prove these claims. While we have predicated" }, { "docid": "22896828", "title": "", "text": "employee can demonstrate that there is a sexually hostile work environment without proving blatant sexual misconduct. Indeed, in commenting on the Andrews elements, we noted that the intent to discriminate on the basis of sex could be demonstrated through actions which “are not sexual by their very nature,” although we stated that a more fact intensive analysis would be necessary in such a case. Andrews, 895 F.2d at 1482 n. 3. Consequently, we recount Spain’s allegations and evidence thereof and then consider them in light of the elements of a sexually hostile work environment claim under Andrews. As we discuss above, Spain charges that she was the subject of false rumors that she was having a sexual relationship with Nelson and had gained influence over him as a result of their relationship. These rumors developed among her co-workers because they often saw her and Nelson in private meetings. However, these meetings allegedly resulted from Nelson’s improper solicitation of loans, a practice which lasted for several years after Nelson initiated it. Spain charges that as a result her work environment was affected in essentially five ways. First, she was subjected to the spreading of false rumors about her sexual affairs that impugned the integrity of her job performance. The very existence of the rumors caused Spain embarrassment. Second, due to the rumored sexual relationship, Spain’s co-workers allegedly treated her like an outcast, leading to poor interpersonal relationships between herself and them, and causing Spain to feel miserable. Third, the rumors and the resulting poor interpersonal relationships at work led supervisory personnel to evaluate Spain negatively for advancement purposes. Spain proffered testimony from a co-worker and a supervisor regarding the rumors and these effects on her and on her environment. Fourth, Spain alleges that Nelson knowingly exacerbated the situation. After creating the conditions in which the rumors developed, Nelson perpetuated the rumors by continuing to demand loans from Spain and to meet with her privately for this purpose, even after Spain informed him of the rumors and asked him to stop them. Finally, Spain contends that Nelson denied her a promotion in" }, { "docid": "22896810", "title": "", "text": "77. Spain claims that she learned of the rumors during casual conversations in the office. She alleges that she complained about the rumors to Nelson approximately four times per year between 1986 and 1988 and once in 1989 and requested him to put them to an end. Id. at 230. However, she alleges that the private meetings and loan requests continued, thereby perpetuating the rumors. According to Spain, the rumors and Nelson’s continuation of his conduct in the face of the rumors embarrassed Spain, app. at 231, and caused her co-workers to ostracize her, thereby straining her relationship with them and with her supervisors and making her feel miserable and unable to “deal with the situation.” Id. at 77. Spain claims that in late 1989 or early 1990 she told Nelson that she would no longer lend him any money. Id. at 78. Spain alleges that this refusal led Nelson to escalate his harassment, ultimately resulting in her being denied a promotion as a result of the rumors. In 1990, Spain unsuccessfully sought a promotion to GM-13 Supervisory Investigator. Spain contends that in part Nelson based his decision not to promote her on evaluations by her supervisors in the office. Appellant’s br. at 7. As evidence of the impact of the false rumors upon her work environment, Spain points to an affidavit of one of these evaluating supervisors, Bruce Bagin, stating that he graded Spain low on the “integrity” category of the evaluation due to his perception of her conduct with Nelson based on the rumors and his observations. Bagin also stated that Spain had complained to him about the false rumors but that he refused to discuss them because his perception of her conduct seriously had affected his view of her. App. at 80. The EEOC contests Spain’s assertion regarding the basis for its decision not to promote her and responds that Nelson considered much evidence assessing her qualifications, including the negative opinion of her supervisor in the Dayton Area Office. Ap-pellee’s br. at 4-5. However, Spain offers as evidence a memorandum from Nelson to his superior, Butler, which" }, { "docid": "22896846", "title": "", "text": "1. Relevance We recently discussed Rule 401 and the standards for excluding evidence on relevancy grounds: Under Fed.R.Evid. 401, evidence is relevant if it has ‘any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.’ As noted in the Advisory Committee’s Note to Rule 401, ‘[rjelevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter properly provable in the ease.’ Because the rule makes evidence relevant ‘if it has any tendency to prove a consequential fact, it follows that evidence is irrelevant only when it has no tendency to prove the fact.’ 22 Charles A. Wright & Kenneth W. Graham, Jr., Federal Practice and Procedure: Evidence § 5166, at 74 n. 47 (1978) (emphasis added). Thus the rule, while giving judges great freedom to admit evidence, diminishes substantially their authority to exclude evidence as irrelevant. Id. § 5166, at 74. Blancha v. Raymark Indus., 972 F.2d 507, 514 (3d Cir.1992). The EEOC argues that the district court correctly excluded the evidence as irrelevant, inasmuch as evidence concerning the reason for the meetings between Spain and Nelson and the resulting rumors does not tend to prove or disprove Spain’s allegations regarding the rumors and that she was subjected to sexual harassment as a result. Appellee’s br. at 15-16. The EEOC contends that even under Spam’s view of the ease, the occurrence of the meetings with Nelson, but not the reasons for the meetings, is significant. Id. at 16. Yet, it is clear that evidence concerning the reasons for the private meetings between Nelson and Spain had a tendency to prove certain elements of Spain’s claims, for the evidence demonstrated why Nelson would have wanted private meetings, as the EEOC regulations prohibited him from borrowing money from subordinates. Furthermore, the reasons for the meetings tend to demonstrate why they were so frequent. More importantly, if a jury knew the reasons for the meetings, it would gain" }, { "docid": "22896821", "title": "", "text": "but granted the EEOC’s motion to exclude any evidence regarding whether Nelson solicited and accepted loans from Spain. Id. at 40-43. In opposition to the motion, Spain argued that the private meetings at which Nelson obtained the loans were the source of the false rumors that they were having a relationship and that Nelson could have stopped the rumors by ceasing to meet with Spain to borrow money. Id. at 42-43. However, the court found no evidentiary value in the fact that “other people interpreted meetings ... in the wrong way.” Id. As the district court prepared to adjourn, Spam’s attorney asked whether taking a voluntary non-suit based on the court’s ruling would eliminate her appeals. The court responded in the affirmative with respect to the issues on which Spain still was able to proceed. Id. at 45. The court stated that reversal of its ruling regarding the rumor-based sexual discrimination and harassment claims would permit Spain to try those claims, but reversal would not revive her remaining claims. Id. at 45^6. Moreover, the court and Spain’s attorney discussed the fact that the evidentiary rulings regarding the sexual discrimination and harassment claims had no bearing on the remaining claims of racial discrimination and retaliation. Four days later, on Monday, July 19,1993, as the parties were about to start the trial on the remaining claims, Spain’s attorney again suggested that Spain might not continue with the litigation. The court then warned him that if Spain did not proceed on her remaining claims, it would dismiss her case with prejudice for failure to prosecute. App. at 51. Noting the court’s intentions, Spain then declared her decision not to proceed with the remaining allegations regarding failure to promote on the basis of race, failure to promote in retaliation for filing prior EEOC charges, and retaliation for filing this suit. App. at 52. The district court then followed through with its warnings and dismissed Spain’s case. Furthermore, the court found that Spain could have advised the court of her decision not to proceed during the previous three days. Accordingly, it taxed the $375 costs" }, { "docid": "22896820", "title": "", "text": "to integrity because of the rumors about the affair. Id. at 38. At first, the district court stated that it would allow evidence supporting these allegations inasmuch as a failure to promote due to the rumors had “a sexual connection.” Id. at 39. However, on reconsideration, the court concluded that the poor ratings related to sexual activity and not gender. Consequently, the court ruled that the evidence could not be admitted unless there was evidence that males who did the same thing were treated differently. Id. at 44. The court thus held that Title VII does not require that a supervisor deny rumors that he is having an affair with a subordinate. Therefore, the district court barred Spain from proceeding on her sexual discrimination and harassment claims based on the evidence she intended to offer. This ruling effectively granted summary judgment to the EEOC on these claims, and accordingly we review the case as if the court formally granted summary judgment. The district court also ruled on the motions in limine. It denied Spain’s motion but granted the EEOC’s motion to exclude any evidence regarding whether Nelson solicited and accepted loans from Spain. Id. at 40-43. In opposition to the motion, Spain argued that the private meetings at which Nelson obtained the loans were the source of the false rumors that they were having a relationship and that Nelson could have stopped the rumors by ceasing to meet with Spain to borrow money. Id. at 42-43. However, the court found no evidentiary value in the fact that “other people interpreted meetings ... in the wrong way.” Id. As the district court prepared to adjourn, Spam’s attorney asked whether taking a voluntary non-suit based on the court’s ruling would eliminate her appeals. The court responded in the affirmative with respect to the issues on which Spain still was able to proceed. Id. at 45. The court stated that reversal of its ruling regarding the rumor-based sexual discrimination and harassment claims would permit Spain to try those claims, but reversal would not revive her remaining claims. Id. at 45^6. Moreover, the court" }, { "docid": "22896814", "title": "", "text": "she has been subject to sexual discrimination and harassment stemming from “false rumors being circulated that she was involved in an intimate relationship with defendant Nelson.” Id. Spain also alleges that even though Nelson knew the rumors were false, he perpetuated them by continuing his improper loan solicitation and by not taking steps to prevent the rumors. Instead, according to Spain, he and Butler, who also knew about the false rumors, used them to deny her advancement. Id. at 3-4. In essence, Spain’s claims of sexual discrimination and harassment are traceable to Nelson’s alleged conduct, which both caused and perpetuated the rumors that, in turn, resulted in the treatment she received from both her co-workers and supervisors. Spain also claims that there was retaliation against her for refusing to continue to lend Nelson money, a practice which she asserts had been instituted because of her sex and race. Id. at 4. In addition to alleging that she was bypassed improperly for a promotion, Spain claims that Nelson had begun downgrading her evaluations, and that Butler had rescinded an award due her. Id. After depositions were taken, Spain’s complaint against Butler was dismissed on November 10, 1992, with her consent. The United States then filed a Certificate of Substitution of itself for Nelson as a defendant under 28 U.S.C. § 2679, and the district court permitted the substitution on March 3, 1993. Thereafter, on April 6, 1993, Spain filed a motion in limine seeking to exclude evidence that her supervisors in the Dayton office evaluated her negatively and evidence that she had not been forthcoming about her education on her employment application. On April 9,1993, the EEOC filed a motion in limine pursuant to Fed.R.Evid. 401-03 to prevent Spain and her attorney from referring to or offering as evidence any testimony regarding the alleged loans by Spain to Nelson. On April 12, 1993, Spain agreed to dismiss the United States as a defendant. Thus, as Nelson and Butler were no longer parties, the ease went forward solely against the EEOC. On Thursday, July 15,1993, the day set for jury selection, the" } ]

[ { "docid": "9831880", "title": "", "text": "that occurred. Instead Kimberlin argues that the due process “violation occurred at the very moment Gahl disclosed the information to DeLong/Kight” (Br. 22). However, there was no property deprivation at the time of this disclosure. Kimberlin still had full access to and use of all the funds in his account. B. Privacy Interest Kimberlin next contends that the disclosure from Gahl to Kight and DeLong violated his right to privacy. The exact nature and scope of informational privacy rights have never been fully developed. The Supreme Court in Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64, recognized a constitutional interest “in avoiding disclosure of personal matters.” See also id. at 606, 97 S.Ct. at 880 (broad dissemination by government officials of drug prescription information would clearly implicate constitutionally protected privacy rights) (Brennan, J., concurring); Barry v. New York, 712 F.2d 1554, 1558 (2d Cir. 1983), certiorari denied, 464 U.S. 1017, 104 S.Ct. 548, 78 L.Ed.2d 723. Whether or not Kimberlin has a privacy interest in the information pertaining to his inmate commissary account depends upon whether he has a reasonable expectation of privacy in the information. Nixon v. Administrator of General Services, 433 U.S. 425, 97 S.Ct. 2777, 53 L.Ed.2d 867; Plante v. Gonzalez, 575 F.2d 1119, 1135 (5th Cir.1978), certiora-ri denied, 439 U.S. 1129, 99 S.Ct. 1047, 59 L.Ed.2d 90. Kimberlin claims that his expectation of privacy stems from the Privacy Act itself, which guarantees that the information will not be disclosed absent consent. While this argument may be persuasive in a general context, on the facts of this case it is untenable. First, the disclosure from Leddy to Gahl was done pursuant to a routine use exception and thus was not improper. Second, the disclosure from Gahl to DeLong and Kight was also in conformance with the use exception. Subsection (d) allows for the fund to be used as an information source to law enforcement officials for purposes including use in civil court actions (see supra note 3). Accordingly, Kimberlin could not reasonably expect that the commissary account information would not be" } ]

[ { "docid": "15044173", "title": "", "text": "in the legislative history suggests that this was a result Congress contemplated. Because the MJ declined to issue a § 2703(d) order on legal grounds without developing a factual record, she never performed the analysis whether the Government’s affidavit even met the standard set forth in § 2703(d). The Government’s position would preclude magistrate judges from inquiring into the types of information that would actually be disclosed by a cell phone provider in response to the Government’s request, or from making a judgment about the possibility that such disclosure would implicate the Fourth Amendment, as it could if it would disclose location information about the interior of a home. The Government argues that no CSLI can implicate constitutional protections because the subscriber has shared its information with a third party, i.e., the communications provider. For support, the Government cites United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), in which the Supreme Court found that an individual’s bank records were not protected by the Constitution because “all of the records [which are required to be kept pursuant to the Bank Secrecy Act,] pertain to transactions to which the bank was itself a party,” id. at 441, 96 S.Ct. 1619 (internal quotation and citation omitted), and “[a]ll of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business,” id. at 442, 96 S.Ct. 1619. The Government also cites Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), in which the Supreme Court held that citizens have no reasonable expectation of privacy in dialed phone numbers because “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties,” id. at 744, 99 S.Ct. 2577, and a phone call “voluntarily convey[s] numerical information to the telephone company and ‘expose[s]’ that information to its equipment in the ordinary course of business,” id. at 744, 99 S.Ct. 2577. The Court reasoned that individuals “assume[ ] the risk that the company w[ill] reveal" }, { "docid": "12633829", "title": "", "text": "a “search and seizure” under the Fourth Amendment. Id. at 353, 88 S.Ct. at 512. The critical fact was that one who enters a telephone booth, “shuts the door behind him, and pays the toll that permits him to place a call” is entitled to assume that his conversation is not being intercepted and recorded. Id. at 352, 88 S.Ct. at 511-12; id. at 361, 88 S.Ct. at 516-17 (Harlan, J., concurring). C. Third Party’s Business Records In subsequently applying Katz’s test, the Supreme Court held — in both United States v. Miller and Smith v. Maryland— that individuals have no reasonable expectation of privacy in certain business records owned and maintained by a third-party business. In United States v. Miller, during an investigation into tax fraud, federal agents presented subpoenas to the presidents of two banks, seeking to obtain from those banks all of Miller’s bank account records. 425 U.S. 435, 437-38, 96 S.Ct. 1619, 1621, 48 L.Ed.2d 71 (1976). The issue was whether the defendant Miller had a “legitimate expectation of privacy” in the documents’ contents. See id. at 440-43, 96 S.Ct. at 1622-24. The Supreme Court held that Miller had no protectable Fourth Amendment interest in the account records because the documents were: (1) business records of' transactions to which the banks were parties and (2) Miller voluntarily conveyed the information to the banks. Id. Miller had “neither ownership nor possession” over the papers and the records. Id. at 437, 440, 96 S.Ct. at 1621, 1623. Rather, the papers were “the busi ness records of the banks.” Id. at 440-41, 96 S.Ct. at 1623. All of the bank records contained information “voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business.” Id. at 442, 96 S.Ct. at 1624. The Supreme Court noted “that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third" }, { "docid": "22467383", "title": "", "text": "record of the arrival and departure of its guests in such a manner that the record will be a permanent one for at least one year from the date of departure.” See Wash. Rev.Code § 19.48.020. Although a. motel owner is required to keep registration records, Cormier argues that the records are solely for business regulation purposes and not for police investigatory use. Even if Cormier is correct, however, he has still failed to allege a Fourth Amendment violation because he has no reasonable expectation of privacy in the records. In United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), the Supreme Court considered whether a bank depositor has a reasonable expectation of privacy in bank records, including such items as financial statements and deposit slips: See id. at 441-43, 96 S.Ct. 1619. Similar to the Washington statute at issue in this case, the bank in Miller was required by law to retain financial records belonging to its depositors. See id. at 443, 96 S.Ct. 1619. Recognizing that bank records are highly personal documents, the Supreme Court nevertheless found that “[t]he depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government.” Id. The Court reaffirmed its view that a person does not have a privacy interest in information revealed to a third party, and subsequently conveyed to governmental authorities, even if the information is revealed on the assumption that it will be used for a limited purpose and that the third party will not betray their confidence. See id.; see also United States v. Choate, 576 F.2d 165, 175-77 (9th Cir.1978) (holding that there is no reasonable expectation of privacy in mail covers). The key factor, Miller held, is that a person does not possess a reasonable expectation of privacy in an item in which he has no possessory or ownership interest. See Miller, 425 U.S. at 440, 96 S.Ct. 1619. Although Miller addressed whether a depositor possesses a Fourth Amendment interest in bank records, the analysis is equally applicable to motel registration" }, { "docid": "21204765", "title": "", "text": "v. Phibbs, 999 F.2d 1053, 1077 (6th Cir.1993). Phibbs makes explicit, however, a necessary Fourth Amendment caveat to the rule regarding third-party subpoenas: the party challenging the subpoena has “standing to dispute [its] issuance on Fourth Amendment grounds” if he can “demonstrate that he had a legitimate expectation of privacy attaching to the records obtained.” Id.; see also United States v. Miller, 425 U.S. 435, 444, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (“Since no Fourth Amendment interests of the depositor are implicated here, this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant.” (emphasis added)). This language reflects the rule that where the party challenging the disclosure has voluntarily disclosed his records to a third party, he maintains no expectation of privacy in the disclosure visa-vis that individual, and assumes the risk of that person disclosing (or being compelled to disclose) the shared information to the authorities. See, e.g., United States v. Jacobsen, 466 U.S. 109, 117, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984) (“[W]hen an individual reveals private information to another, he assumes the risk that his confidant will reveal that information to the authorities, and if that occurs the Fourth Amendment does not prohibit governmental use of that information.”). Combining this disclosure to a third party with the government’s ability to subpoena the third party alleviates any need for the third-party subpoena to meet the probable cause requirement, if the challenger has not maintained an expectation of privacy with respect to the individual being compelled to make the disclosure. For example, in Phibbs, the documents in question were credit card and phone records that were “readily accessible to employees during the normal course of business.” 999 F.2d at 1078. A similar rationale was employed by the Supreme Court in Miller. 425 U.S. at 442, 96 S.Ct. 1619 (“The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain" }, { "docid": "13318124", "title": "", "text": "(1978). Fourth Amendment rights are personal and may not be “vicariously asserted.” Id. at 133-34, 99 S.Ct. 421. To prevail on a Fourth Amendment claim, a plaintiff first must show that there was a search and seizure of that individual’s person, house, papers or effects, conducted by an agent of the government, ie., an invasion of the claimant’s reasonable expectation of privacy. United States v. Segura-Baltazar, 448 F.3d 1281, 1285-86 (11th Cir.2006). Second, the plaintiff must show that the challenged search and seizure must be “unreasonable,” ie., not supported by a probable cause. Id. An officer or a sole shareholder of a corporation may have a privacy interest in corporate records if he can demonstrate that he had a legitimate and reasonable expectation of privacy in such records. See, e.g., Williams v. Kunze, 806 F.2d 594, 599 (5th Cir.1986) (status as officer and shareholder was insufficient on its own to demonstrate an expectation of privacy in corporate documents; plaintiffs lacked standing to challenge the search and seizure of such documents). Further, one who gives business records to another does not retain a privacy interest in such records. In United States v. Miller, 425 U.S. 435, 442-44, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), the Supreme Court found that a bank depositor had no Fourth Amendment interest in checks, deposit slips, financial records, and monthly statements that were obtained by the government via grand jury subpoenas served on a bank. The documents were business records of the bank, not private papers. Miller, 425 U.S. at 442-43, 96 S.Ct. 1619. The depositor lacked an expectation of privacy in the records as he had voluntarily conveyed them to the bank. Id. “[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id. at 443, 96 S.Ct. 1619. The same principle applies to information revealed to a third party via the" }, { "docid": "20585436", "title": "", "text": "the information to the third party in the first place. See Miller, 425 U.S. at 442, 96 S.Ct. 1619; Smith, 442 U.S. at 743-44, 99 S.Ct. 2577. It is clear to us, as explained below, that cell phone users do not voluntarily convey their CSLI to their service providers. The third-party doctrine of Miller and Smith is therefore inapplicable here. a. The Supreme Court held in Miller and Smith that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U.S. at 743-44, 99 S.Ct. 2577; see also Miller, 425 U.S. at 442, 96 S.Ct. 1619. This is so even if “the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Miller, 425 U.S. at 443, 96 S.Ct. 1619. In Miller, the government used defective subpoenas to obtain financial records from the defendant’s bank. 425 U.S. at 436, 96 S.Ct. 1619. The Court determined first that the defendant could not claim an unconstitutional invasion of his “private papers” because he had neither ownership nor possession of the transactional records at issue. Id. at 440-41, 96 S.Ct. 1619 (citation omitted). Next, the Court turned to the defendant’s claim that the government violated his privacy interests in the contents of the bank records. Id. at 442, 96 S.Ct. 1619. Because such documents “contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business,” the Court held that the depositor lacks “any legitimate expectation of privacy” in this information. Id. at 442, 96 S.Ct. 1619. “[I]n revealing his affairs to another,” the defendant assumed the risk “that the information [would] be conveyed by that person to the Government.” Id. at 443, 96 S.Ct. 1619. In Smith, a telephone company, at the request of police, utilized a pen register device to record the numbers dialed from the home phone of Michael Lee Smith, a man suspected of robbing a woman and then harassing her through anonymous phone calls." }, { "docid": "9588620", "title": "", "text": "to raise their First Amendment claims because the summons was directed to third-party records of the bank, citing Fisher v. United States, 425 U.S. 391, 401 n. 7, 96 S.Ct. 1569, 1576 n. 7, 48 L.Ed.2d 39 (1976), and United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). Neither case supports the Government’s position. In Fisher, the Supreme Court concluded that “compelled production of documents from an attorney does not implicate whatever Fifth Amendment privilege the taxpayer might have enjoyed from being compelled to produce them himself.” Fisher, 425 U.S. at 402, 96 S.Ct. at 1576 (emphasis added). Fifth Amendment rights cannot be infringed unless the governmental compulsion is directed at the holder of the right; “the Fifth Amendment protects against ‘compelled self -incrimination, not [the disclosure of] private information.’ ” Id. at 401, 96 S.Ct. at 1576 (emphasis added) (quoting United States v. Nobles, 422 U.S. 225, 233 n. 7, 95 S.Ct. 2160, 2167 n. 7, 45 L.Ed.2d 141 (1975)). There can be no violation of one’s Fifth Amendment right not to testify against oneself where the records are in the hands of a third party; hence, one cannot complain on this ground about a subpoena directed to third parties to produce records. Similarly, in Miller the Court held that a depositor had no protected Fourth Amendment interest in bank records obtained by means of an allegedly defective subpoena. See Miller, 425 U.S. at 440, 96 S.Ct. at 1622. The bank records are not the depositor’s private papers and, having given the information to the bank, the depositor has no legitimate expectation of continued privacy. Because no constitutionally protected interest was found in Fisher and Miller, the Court concluded in each case that the third-party subpoena could not be attacked. By contrast, the Court in Fisher recognized that private information sought to be obtained from third parties, such as that in the case at bar, is protected by sources other than the Fifth Amendment. Fisher, 425 U.S. at 401, 96 S.Ct. at 1576. The Court specifically named the First Amendment as one source of" }, { "docid": "4865738", "title": "", "text": "expectation of privacy in their historical .cell site location data. While Defendant Jordan’s use of fictitious subscriber information certainly presents one avenue by which this Court could reject his Fourth Amendment claim, see United States v. Suarez-Blanca, 2008 WL 4200156, at *6-7 (N.D.Ga. April 21, 2008), the real issue is whether the Defendants have a legitimate expectation of privacy in their location data captured by their cellular service providers, and not whether they have a legal or possessory interest in the property. See Rakas, 439 U.S. at 148-49 & n. 17, 99 S.Ct. 421. D. Business Records and the Third-Party Doctrine In Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), the Supreme Court held that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Id. at 743-44, 99 S.Ct. 2577 (citations omitted). Put another way, the Court has stated that “the Fourth Amendment does not prohibit' the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). While the Supreme Court has applied this third-party doctrine to a number of scenarios, this Court finds its application to financial records and dialed telephone numbers to be particularly instructive. In United States v. Miller, the government subpoenaed a bank seeking financial records of the defendant. 425 U.S. at 435, 96 S.Ct. 1619. The defendant challenged the subpoena on Fourth Amendment grounds, but the Court rejected that argument for separate but related reasons. First, the Court concluded that the documents at issue were not the defendant’s “private papers.” Id. at 440, 96 S.Ct. 1619. Instead, they were the “business records of the banks” that “pertain[ed] to transactions to which the bank was itself a party.” Id. at 440-41, 96 S.Ct. 1619. Accordingly, the defendant could “assert neither ownership nor" }, { "docid": "20585435", "title": "", "text": "that permit the government to deduce this information.” Post at 380. But even the analyses in the cases upon which the dissent relies focused foremost on whether, under Katz, the privacy expectations asserted for certain information obtained by the government were legitimate. See United States v. Miller, 425 U.S. 435, 442, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (“We must examine the nature of the particular documents sought to be protected in order to determine whether there is a legitimate ‘expectation of privacy’ concerning their contents.” (emphasis added)); Smith v. Maryland, 442 U.S. 735, 742, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (“petitioner’s argument that [the] installation and use [of a pen register] constituted a ‘search’ necessarily rests upon a claim that he had a ‘legitimate expectation of privacy’ regarding the numbers he dialed on his phone.” (emphasis added)). In answering that question, the fact that the information at issue in Miller and Smith was contained in records held by third parties became relevant only insofar as the defendant in each case had “voluntarily conveyed” the information to the third party in the first place. See Miller, 425 U.S. at 442, 96 S.Ct. 1619; Smith, 442 U.S. at 743-44, 99 S.Ct. 2577. It is clear to us, as explained below, that cell phone users do not voluntarily convey their CSLI to their service providers. The third-party doctrine of Miller and Smith is therefore inapplicable here. a. The Supreme Court held in Miller and Smith that “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith, 442 U.S. at 743-44, 99 S.Ct. 2577; see also Miller, 425 U.S. at 442, 96 S.Ct. 1619. This is so even if “the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Miller, 425 U.S. at 443, 96 S.Ct. 1619. In Miller, the government used defective subpoenas to obtain financial records from the defendant’s bank. 425 U.S. at 436, 96 S.Ct. 1619. The Court determined first that the" }, { "docid": "23177108", "title": "", "text": "In evaluating Frazin’s claim, we consider first, whether the Act itself authorizes a suppression remedy, and second, if the Act does not authorize such a remedy, whether we may provide one in the exercise of our supervisory powers. We hold against appellant on both issues. There is no dispute over the facts relating to the government’s collection of Fra-zin’s financial information and records. The only issue on appeal is whether the district court was correct as a matter of law in refusing to suppress the improperly obtained evidence. We review the question de novo. United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, — U.S. -, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984). The Right to Financial Privacy Act of 1978 prohibits financial institutions from providing the government with information concerning their customers’ financial records, unless either the customer authorizes the disclosure of such information or the government obtains a valid subpoena or warrant. 12 U.S.C. § 3402. Congress passed the Act in part as a response to United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). See H.R. Rep. No. 1383, 95th Cong., 2d Sess. 34 (1978) [“H.R. Rep. No. 1383”], reprinted in 1978 U.S.Code Cong. & Ad.News 9273, 9306; Electronic Fundís Transfer and Financial Privacy: Hearings on S. 2096, S. 2293, and S. 1460 Before the Subcomm. on Financial Institutions of the Senate Comm, on Banking, Housing, and Urban Affairs, 95th Cong., 2d Sess. 154 (1978) (statement of Senator Mathias) [“Senate Hearings”]. In United States v. Miller, the Supreme Court affirmed a denial of a motion to suppress bank records obtained by an allegedly defective subpoena, on the ground that a bank customer has no constitutionally-protected privacy interest in such records. Miller, 425 U.S. at 440, 96 S.Ct. at 1622-23. The Act “fill[s] the void in ... Federal law [left by Miller ] regarding statutory protection against unrestricted access to third-party records.” Senate Hearings at 154; see also The Safe Banking Act of1977: Hearings on H.R. 9086 before the Subcomm. on Financial Institutions Supervision, Regulation & Insurance of" }, { "docid": "110388", "title": "", "text": "Fourth Amendment warrant requirement. In United States v. Graham, 846 F.Supp.2d 384 (D.Md.2012), Judge Bennett affirmed the government’s use of a court order under § 2703(d) to acquire cell site location data without probable cause. Because the collection of data did not involve physical trespass to private property, Graham analyzed the gathering of cell site location data under Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). See Graham, 846 F.Supp.2d at 396 (citing United States v. Jones, — U.S. -, 132 S.Ct. 945, 953, 181 L.Ed.2d 911 (2012)) (Scalia, J.) (“Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.”). In deciding that the defendant did not have a legitimate expectation of privacy in his cell site location data, Graham relied on the business records/third-party doctrine explained by the U.S. Supreme Court in United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) and Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). Id. at 403. i. United States v. Miller As the U.S. Supreme Court has repeatedly held, the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. Miller, 425 U.S. at 443, 96 S.Ct. 1619 (citing United States v. White, 401 U.S. 745, 91 S.Ct. 1122, 28 L.Ed.2d 453 (1971), Hoffa v. United States, 385 U.S. 293, 302, 87 S.Ct. 408, 17 L.Ed.2d 374 (1966), and Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462 (1963)). In Miller, the Court held that the defendant, Mitch Miller, did not have a protected privacy interest in business records kept by a bank about accounts in his name. Id. at 440, 96 S.Ct. 1619. They were not Miller’s “private papers,” but were records maintained by the bank. Id. Miller argued that the bank" }, { "docid": "16732450", "title": "", "text": "that \"there are no constitutionally protected privacy interests with respect to bank statements, financial statements, and other documents that are prepared or generated in connection with transactions with others.\" Brief for FDIC at 20. The FDIC purports to find this principle in United States v. Miller, 425 U.S. 435, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). In Miller, the Court held that a bank customer had no protected Fourth Amendment interest in the copies of checks and other records retained by his bank, and so could not assert a Fourth Amendment challenge to a grand jury subpoena to the bank for those records. Id. at 440-43, 96 S.Ct. at 1622-24. Contrary to the FDIC’s assertion, Miller did not purport to nullify all rights to privacy in financial records; rather, the Court held only that a bank customer could not assert a privacy interest in those records held by the bank. See id. at 440, 96 S.Ct. at 1622-23 (banks' records \"are not respondent's 'private papers' \" but are \"the business records of (he banks,” in which a customer \"can assert neither ownership nor possession”); see also SEC v. Jerry T. O’Brien, Inc., 467 U.S. 735, 743, 104 S.Ct. 2720, 2725-26, 81 L.Ed.2d 615 (1984) (under Miller, “when a person communicates information to a third party ..., he cannot object if the third party conveys that information or records thereof to law enforcement authorities”); United States v. Daccarett, 6 F.3d 37, 50 (2d Cir.1993) (same), cert. denied,-U.S. -, 114 S.Ct. 1294, 127 L.Ed.2d 648 (1994). . At oral argument, the FDIC identified these paragraphs as the only ones not related to the agency's purpose of uncovering asset transfers, and we think that they also could not reasonably be described as relevant to either of the investigation’s two remaining purposes — determining liability or determining whether an attachment of assets was warranted. . Congress created the RTC as part of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, Pub.L. No. 101-73, 103 Stat. 183 (codified as amended at 12 U.S.C. §§ 1441a, 1811 et seq (West Supp.1994)) (\"FIRREA”). As conservator" }, { "docid": "19626118", "title": "", "text": "concerns would be raised by, for example, \"surreptitiously activating a stolen vehicle detection system\" in Jones's car to track Jones himself, or conducting GPS tracking of his cell phone. Id., at 426, 428, 132 S.Ct. 945 (ALITO, J., concurring in judgment); id., at 415, 132 S.Ct. 945 (SOTOMAYOR, J., concurring). Since GPS monitoring of a vehicle tracks \"every movement\" a person makes in that vehicle, the concurring Justices concluded that \"longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy\"-regardless whether those movements were disclosed to the public at large. Id., at 430, 132 S.Ct. 945 (opinion of Alito, J.); id., at 415, 132 S.Ct. 945 (opinion of Sotomayor, J.). In a second set of decisions, the Court has drawn a line between what a person keeps to himself and what he shares with others. We have previously held that \"a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.\" Smith, 442 U.S., at 743-744, 99 S.Ct. 2577. That remains true \"even if the information is revealed on the assumption that it will be used only for a limited purpose.\" United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976). As a result, the Government is typically free to obtain such information from the recipient without triggering Fourth Amendment protections. This third-party doctrine largely traces its roots to Miller . While investigating Miller for tax evasion, the Government subpoenaed his banks, seeking several months of canceled checks, deposit slips, and monthly statements. The Court rejected a Fourth Amendment challenge to the records collection. For one, Miller could \"assert neither ownership nor possession\" of the documents; they were \"business records of the banks.\" Id., at 440, 96 S.Ct. 1619. For another, the nature of those records confirmed Miller's limited expectation of privacy, because the checks were \"not confidential communications but negotiable instruments to be used in commercial transactions,\" and the bank statements contained information \"exposed to [bank] employees in the ordinary course of business.\" Id., at 442, 96 S.Ct. 1619. The Court thus concluded that" }, { "docid": "13318125", "title": "", "text": "records to another does not retain a privacy interest in such records. In United States v. Miller, 425 U.S. 435, 442-44, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976), the Supreme Court found that a bank depositor had no Fourth Amendment interest in checks, deposit slips, financial records, and monthly statements that were obtained by the government via grand jury subpoenas served on a bank. The documents were business records of the bank, not private papers. Miller, 425 U.S. at 442-43, 96 S.Ct. 1619. The depositor lacked an expectation of privacy in the records as he had voluntarily conveyed them to the bank. Id. “[T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Id. at 443, 96 S.Ct. 1619. The same principle applies to information revealed to a third party via the Internet. See, e.g., United States v. Perrine, 518 F.3d 1196, 1204 (10th Cir.2008) (“Every federal court to address this issue has held that subscriber information provided to an internet provider is not protected by the Fourth Amendment privacy expectation.”); Guest v. Leis, 255 F.3d 325, 335-36 (6th Cir.2001) (“Individuals generally lose a reasonable expectation of privacy in their information once they reveal it to third parties.”); US. v. Hambrick, Civ. No. 99-4793, 2000 WL 1062039, at *4 (4th Cir. Aug. 3, 2000) (a person does not have a privacy interest in the account information given to the ISP in order to establish an email account). Moreover, a fraud victim who voluntarily transfers property to a wrongdoer does not retain a legal interest in the property; instead, the victim becomes a creditor of the wrongdoer. See United States v. Agnello, 344 F.Supp.2d 360, 372 (E.D.N.Y.2004) (finding that standing in a civil forfeiture action requires a showing of an ownership interest in the forfeited property, not merely a right to payment); United States v. $3,000 in Cash," }, { "docid": "12562558", "title": "", "text": "other courts considering this issue, this court finds that plaintiff has a constitutional right to privacy which encompasses nondisclosure of her HIV status. Harris v. Thigpen, 941 F.2d 1495, 1513 (11th Cir.1991) (assuming, arguendo, a constitutionally protected privacy interest in nonconsensual disclosure of HIV status); Faison v. Parker, 823 F.Supp. 1198 (E.D.Pa.1993) (stating that mental health and HIV status information contained in presentence report deserves high degree of protection); Doe v. City of Cleveland, 788 F.Supp. 979, 985 (N.D.Ohio 1991) (arrestee has constitutional right to privacy encompassing nondisclosure of information related to AIDS); Nolley v. County of Erie, 776 F.Supp. 715, 729-731 (W.D.N.Y.1991) (collecting cases and finding that inmates have constitutional right to privacy covering unwarranted disclosure of HIV status); Doe v. Borough of Barrington, 729 F.Supp. 376, 383 (D.N.J.1990) (Con stitution protects-wife and children from governmental disclosure by police officer of their husband’s and father’s infection with AIDS); Rodriguez v. Coughlin, 1989 WL 59607 at * 3 (W.D.N.Y. June 5, 1989) (complaint claiming violation of right to privacy stated cause of action under section 1983 thereby precluding unjustified disclosure of inmate’s AIDS status); Woods v. White, 689 F.Supp. at 876 (plaintiff retains right not to disclose HIV infection despite incarceration). This court must therefore balance plaintiffs right to confidentiality against the government’s interest in disclosure. Faison v. Parker, 823 F.Supp. 1198, 1201-02 (E.D.Pa.1993); Doe v. City of Cleveland, 788 F.Supp. 979, 985 (N.D.Ohio 1991); Doe v. Borough of Barrington, 729 F.Supp. 376, 383 (D.N.J.1990). As noted by one court, the circumstances surrounding the disclosure and the means employed do not define the right to privacy. Rather, the circumstances surrounding disclosure are central to a balancing of plaintiffs right to confidentiality against the state’s interest in disclosure. Doe v. Coughlin, 697 F.Supp. at 1237 & n. 6. Defendants argue that no actionable conduct took place on February 1, 1989, concerning Tibbetts’ conversation with Bosari. Thus, rather than offer a legitimate reason for the disclosure, defendants argue that Tib-betts made no improper disclosure on February 1, 1989. Plaintiffs complaint, however, complains of the allegedly forced disclosure of her HIV status during" }, { "docid": "3495150", "title": "", "text": "the Supreme Court in United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) and Smith v. Maryland, 442 U.S. 735, 744, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). See In re U.S. for Historical Cell Site Data, 724 F.3d 600, 612-15 (5th Cir.2013); United States v. Giddins, No. WDQ-14-0116, 57 F.Supp.3d 481, 492-93, 2014 WL 4955472, at *8 (D.Md.2014); United States v. Banks, 52 F.Supp.3d 1201, 1205-06, 2014 WL 4594197, at *3-4 (D.Kan. Sept. 15, 2014); United States v. Graham, 846 F.Supp.2d 384, 389-390 (D.Md.2012). In Miller, the Supreme Court held that a defendant had no expectation of privacy in his bank records possessed by the financial institution because “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Miller, 425 U.S. at 443, 96 S.Ct. 1619. Subsequently, in Smith, the Supreme Court addressed whether the warrantless installation and use of a pen register that recorded the numbers dialed from Smith’s phone violated the Fourth Amendment. Smith, 442 U.S. at 736, 99 S.Ct. 2577. The Court held that it did not because Smith had no reasonable expectation of privacy in the numbers dialed because he turned them over to a third party, namely the phone company. “When he used his phone, petitioner voluntarily conveyed numerical information to the telephone company and ‘exposed’ that information to its equipment in the ordinary course of business. In so doing, petitioner assumed the risk that the company would reveal to police the numbers he dialed.” Smith, 442 U.S. at 744, 99 S.Ct. 2577. Similar to Miller and Smith, Defendant Lang has no expectation of privacy in his historical cell site records because he voluntarily conveyed this information to his service provider. As the Fifth Circuit said in In re U.S. for Historical Cell Site Data: [C]ell site information is clearly a business record. The cell" }, { "docid": "7686182", "title": "", "text": "and administrative subpoenas for compliance with the appropriate standard before issuing an enforcement order. Williams, 504 U.S. at 48, 112 S.Ct. 1735; Mont. Sulphur, 32 F.3d at 444. Golden Valley contends that it may assert its customers’ Fourth Amendment privacy rights. Even assuming that it can do so, this would not change the analysis here. A customer ordinarily lacks “a reasonable expectation of privacy in an item,” like a business record, “in which he has no possessory or ownership interest.” United States v. Cormier, 220 F.3d 1103, 1108 (9th Cir.2000) (motel registration records); see also United States v. Miller, 425 U.S. 435, 440, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (bank records); United States v. Hamilton, 434 F.Supp.2d 974, 979-80 (D.Or.2006) (electricity consumption records). The records sought here are business records owned and possessed by Golden Valley. Golden Valley also relies on a company policy of protecting the privacy of its members. Depending on the circumstances or the type of information, a company’s guarantee to its customers that it will safeguard the privacy of their records might suffice to justify resisting an administrative subpoena. However, Golden Valley has not shown the existence of any agreement with its customers to keep their usage and payment records confidential. Further, the Court in Miller carefully explained that the nature of the subpoenaed bank records gave the bank’s customers little reason to expect that they would be kept confidential from the government. The Court wrote: Even if we direct our attention to the original checks and deposit slips, rather than to the microfilm copies actually received and obtained by means of the subpoena, we perceive no legitimate “expectation of privacy” in their contents. The checks are not confidential communications but negotiable instruments to be used in commercial transactions. All of the documents obtained, including financial statements and deposit slips, contain only information voluntarily conveyed to the banks and exposed to their employees in the ordinary course of business. 425 U.S. at 442, 96 S.Ct. 1619. Golden Valley’s business records are no more inherently personal or private than the bank records in Miller. Compare Gonzales" }, { "docid": "7595575", "title": "", "text": "handing the paper to Generelli in Principal Bombard’s presence at the official school meeting dealing with Chris’s program. Given Bombard’s supervisory responsibilities, it was understandable that he should insist that a teacher on his staff divulge to him the information and views she had compiled regarding Chris’s evaluation. See note 6, supra. In Katz, the Supreme Court expressly held that “what a person knowingly exposes to the public, even in his home or office, is not a subject of Fourth Amendment protection.” Id. 389 U.S. at 351, 88 S.Ct. at 511 (emphasis added). Moreover, the court “consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.” Smith v. Maryland, 442 U.S. at 743-44, 99 S.Ct. at 2581-82. See, e.g., United States v. Jacobsen, 104 S.Ct. at 1658; United States v. Miller, 425 U.S. 435, 442-43, 96 S.Ct. 1619, 1623-24, 48 L.Ed.2d 71 (1976); Couch v. United States, 409 U.S. 322, 335-36, 93 S.Ct. 611, 619-20, 34 L.Ed.2d 548 (1973); United States v. White, 401 U.S. 745, 752, 91 S.Ct. 1122, 1126, 28 L.Ed.2d 453 (1971). In Miller, for example, the Supreme Court held that a bank depositor has no legitimate expectation of privacy in financial information voluntary conveyed to banks and exposed to their employees in the ordinary course of business. The Court emphasized: The depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that person to the Government____ This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. 425 U.S. at 443, 96 S.Ct. at 1624. Thus, the court in Miller reasoned that because the depositor had “assumed the risk” of disclosure, it would be unreasonable for him to expect his financial records to remain private. The conclusion which can be" }, { "docid": "5804764", "title": "", "text": "contents of voluntarily prepared business records held by the owner of a sole proprietorship because no compulsion was involved in their creation, it is difficult to see why the contents of an individual’s voluntarily created private financial records should be treated differently. Whatever is left of the holding in Boyd, it does not extend to financial records such as checks, check registers or information reflecting withdrawals from accounts. See United States v. Porter, 557 F.Supp. 703, 714-15 (N.D.Ill.1982) (respondent’s appointment book was content-protected under the Fifth Amendment, but cancelled checks and withdrawal slips were not), rev’d, 711 F.2d 1397 (7th Cir.1983) (contents of cancelled cheeks and withdrawal slips are not protected, but the act of producing them is); see also Fisher, 425 U.S. at 427, 96 S.Ct. at 1589 (Brennan, J., concurring) (“[Nonbusiness economic records in the possession of an individual] are, however, like business records and the papers involved in those cases, frequently, though not always, disclosed to other parties; and disclosure, in proper cases, may foreclose reliance upon the privilege.”); cf. United States v. Miller, 425 U.S. 435, 442-43, 96 S.Ct. 1619, 1624-25, 48 L.Ed.2d 71 (1976) (subpoena of an individual’s financial records from banks did not violate the Fourth Amendment because an individual has no legitimate expectation of privacy even in the contents of original checks and deposit slips). If the contents of private papers are protected at all under the Fifth Amendment, it is only where compelled disclosure would break “the heart of our sense of privacy.” Butcher v. Bailey, 753 F.2d 465, 469 (6th Cir.), cert. dismissed, — U.S. -, 106 S.Ct. 17, 87 L.Ed.2d 696 (1985) (holding that personal records relating to the property of the bankrupt’s estate are not so intimately personal as to evoke serious concern over privacy interests), , quoting Doe, 465 U.S. at 619 n. 2, 104 S.Ct. at 1245 n. 2 (Marshall, J., concurring in part and dissenting in part). Thus while the contents of certain private personal documents, such as personal letters or diaries, may remain protected under the Fifth Amendment or other constitutional provisions, the contents of" }, { "docid": "3495149", "title": "", "text": "of privacy in the area searched.” United States v. Kelly, 772 F.3d 1072, 1083-84 (7th Cir.2014) (citing Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring)). Thus, if Defendant Lang has a reasonable expectation of privacy in his historical cell site records, obtaining such records will constitute a search as defined by the Fourth Amend ment and the government must obtain a search warrant to acquire them. Although the Seventh Circuit has not explicitly addressed the issue of whether historical cell site information raises Fourth Amendment issues thus requiring a search warrant, it recently noted that it has “not found any federal appellate decision accepting [the] premise that obtaining cell-site data from telecommunications companies — under any factual scenario— raises a concern under the Fourth Amendment.” United States v. Thousand, 558 Fed.Appx. 666, 670 (7th Cir.2014). Indeed, the majority of courts that have addressed a Fourth Amendment challenge to obtaining cell site information have analyzed the request under the third party/business records framework as articulated by the Supreme Court in United States v. Miller, 425 U.S. 435, 443, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) and Smith v. Maryland, 442 U.S. 735, 744, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979). See In re U.S. for Historical Cell Site Data, 724 F.3d 600, 612-15 (5th Cir.2013); United States v. Giddins, No. WDQ-14-0116, 57 F.Supp.3d 481, 492-93, 2014 WL 4955472, at *8 (D.Md.2014); United States v. Banks, 52 F.Supp.3d 1201, 1205-06, 2014 WL 4594197, at *3-4 (D.Kan. Sept. 15, 2014); United States v. Graham, 846 F.Supp.2d 384, 389-390 (D.Md.2012). In Miller, the Supreme Court held that a defendant had no expectation of privacy in his bank records possessed by the financial institution because “the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.” Miller, 425 U.S. at 443, 96 S.Ct." } ]

[ { "docid": "16008389", "title": "", "text": "suitcase was not on Wagner’s person nor in the bathroom where the “persuasive force” was being applied. As far as the record of trial is concerned, Cunningham may not even have been aware that the suitcase was anywhere in the apartment. In any event, he could not have been aware that the 250 German marks, subsequently discovered and taken, were in the suitcase. In the course of our review we have also considered the “claim of right” rule and its applicability to the case at hand. It is a principle of long standing in the military law that a person cannot be guilty of robbery in forcibly taking from the person or presence of another if he does so under a bona fide belief that he is the owner of such property, or is assisting an owner. United States v. Maldonado, 15 U.S.C.M.A. 285, 35 C.M.R. 257 (1965); United States v. Kachougian, 7 U.S.C.M.A. 150, 21 C.M.R. 276 (1956); United States v. Mack, 6 M.J. 598 (ACMR 1978). The rationale for this rule is that the appellant’s sincere belief in his right to recaption negates the required animus furandi. United States v. Petrie, 1 M.J. 332 (CMA 1976). This “claim of right” rule is not without limit; it applies only where the claimant or his accomplice reclaim specific property rather than indeterminate property of similar value. See United States v. Mitchell, 30 C.M.R. 889, 893 (AFBR 1960). While there are no military cases directly on point, we hold that the rule does not apply to the taking of money or valuables in liquidation of an uncertain obligation or debt for money. Cf. United States v. Petrie, supra (it was no defense to robbery that accused took money from the victim to recover value of hashish); State v. Martin, 15 Or.App. 498, 516 P.2d 753 (1973); State v. Pierce, 209 Kan. 19, 490 P.2d 584 (1971); Edwards v. State, 49 Wis.2d 105, 181 NW2d 383 (1970); (all standing for the proposition that the taking of money from a debtor by force to pay a debt is robbery), see generally 88 ALR3d" } ]

[ { "docid": "12115151", "title": "", "text": "DC: I stated— MJ: Well, let’s don’t bicker. I don’t think it will serve any purpose and let me just say that as an officer of this court, I think you are charged with the duty of arguing in an appropriate manner consistent with your prior commitments to the court. Following this admonishment, trial defense counsel dutifully limited his sentence argument concerning the accused’s mistaken belief to a statement that the accused “felt he did have a right to carry that weapon off base.” Emphasis supplied. As indicated above, although mistake of law is not a defense to the crime in question, an accused is entitled to assert such mistaken belief as an extenuating matter. Manual for Courts-Martial, supra, paragraph 154a (5). Therefore, the military judge clearly erred in preventing the defense counsel from bringing this matter to the court’s attention before it closed to determine an appropriate sentence. We have already shown that the defense contention was not inconsistent with the accused’s plea, and if the military judge were of the opinion that it was, he should not have accepted the plea. United States v. Thompson, 21 U.S.C.M.A. 526, 45 C.M.R. 300 (1972); United States v. Lewis, 18 U.S.C.M.A. 287, 39 C.M.R. 287 (1969); Article 45, Code, supra. Nevertheless, despite these errors, we are unable to perceive any possibility of harm to the accused. We are satisfied beyond a reasonable doubt that they could not have significantly influenced the members in their sentence deliberations. The accused did testify that he did not think it illegal to carry the weapon concealed on-base and that carrying it off-base was permitted under Ohio law. Further, in aggravation of sentence, the court was provided a record of nonjudicial punishment imposed upon the accused in July 1975. Finally, the adjudged sentence was extremely lenient for the larceny offense alone. In their final assignment of error meriting discussion, appellate defense counsel have challenged the adequacy of the staff judge advocate’s post-trial review on the ground that the reviewer identified the accused’s presentencing testimony as “unsworn.” We agree that this was error but, again, perceive no" }, { "docid": "22057728", "title": "", "text": "for assuring that the jury properly is. instructed on the elements of the offenses raised by the evidence as well as potential defenses and other questions of law. Simply stated, counsel do not frame issues for the jury; that is the duty of the military judge based upon his evaluation of the testimony related by the witnesses during the trial. We have also applied this basic concept to evidentiary matters, determining that it is the trial judge who bears primary responsibility for insuring that only admissible evidence finds its way into the trial. See United States v. Morales, 23 U.S.C.M.A. 508, 50 C.M.R. 647; 1 M.J. 87 (1975); United States v. Heflin, 23 U.S.C.M.A. 505, 50 C.M.R. 644,1 M.J. 131 (1975). Here, however, there was nothing inadmissible about the direct testimony rendered by the witness Bor. As noted, any decision to strike his direct testimony would have been appropriate only as a procedural remedy for his refusal to answer questions on cross-examination; it would have had nothing to do with the qualitative admissibility of that testimony. Therefore, unlike the situations presented to this Court in Graves arid the other previously cited cases, we believe it was not incumbent upon the military judge, in order to insure the basic fairness of the prbceedings, to strike this otherwise admissible and competent direct testimony in the absence of a motion to that end made by the defense. II The question coming to mind naturally following this discussion is why did this defense counsel not move to have Bor’s direct testimony stricken from the record? We have carefully scrutinized the record of trial and have been unable to diáeern any possible advantage which the defense counsel could reasonably have drawn from that direct testimony. True, he did argue to the court the inconsistencies between the testimony of. Bor and of Daniels. However, those inconsistencies were inconsequential and were of the type argued only because nothing else could be done with that testimony, as opposed'to being of the type a defense counsel would so relish arguing that he intentionally for tactical reasons would choose to" }, { "docid": "12139444", "title": "", "text": "(1957); United States v. Tucker, 14 U.S.C.M.A. 376, 34 C.M.R. 156 (1964); United States v. Roeder, 17 U.S.C.M.A. 447, 38 C.M.R. 245 (1968). Even assuming for the purpose of this discussion that mistake of fact as to consent is a valid defense, and was raised by the instant circumstances, the accused would still be entitled to no relief. In our judgment, the trial judge’s instruction that such mistake must be both honest and reasonable to be exonerating (which, we note, was substantially as requested by trial defense counsel) stated the proper standard. Appellate defense counsel, in support of their position that a mistake of fact as to consent need only be honestly held by the accused, cite decisions of the Court of Military Appeals holding that indecent assault is a specific intent offense. United States v. Burden, 2 U.S.C.M.A. 547, 10 C.M.R. 45 (1953); United States v. Wycliff, 3 U.S.C.M.A. 38,11 C.M.R. 38 (1953). They correctly observe that where an offense involves a specific rather than a general criminal intent, the rule, almost without exception, is that a mistake by the accused as to a crucial factor he assumes to exist need only be honest, not honest and reasonable. United States v. Holder, 7 U.S.C.M.A. 213, 22 C.M.R. 3 (1956); United States v. Sicley, 6 U.S.C.M.A. 402, 20 C.M.R. 118 (1955); United States v. Rowan, 4 U.S.C.M.A. 430, 16 C.M.R. 4 (1954). The shortcoming in this reasoning, however, when applied to the instant charge is that the only specific intent involved in the offense of indecent assault is the accused’s intent to gratify his lust or sexual desires. United States v. Rozema, 33 C.M.R. 694 (A.F.B.R. f. rev., 1963), pet. denied, 33 C.M.R. 436; Manual for Courts-Martial, supra, paragraph 213f (2). As succinctly pointed out by appellate government counsel, when an individual participates in a sexual act with another with the intent to gratify his lust, that intent is present regardless of whether the other participant consents or objects to the act. Consequently, whether or not the individual believes the other party is receptive to his aggressive sexual behavior is" }, { "docid": "17122731", "title": "", "text": "her to take for pain caused by the removal of a wisdom tooth by her dentist. She stated that since the oxycodone she used was the leftover and unused portion of a substance that had been lawfully prescribed for her in 1988, that her use to alleviate the pain from the hip injury on the morning of 27 September 1990 was therefore not wrongful but pursuant to legitimate medical practice. If the accused was honestly under such a mistaken belief at the time she used the oxycodone, then she cannot be found guilty of the wrongful use of that substance, for such an honest mistaken belief, no matter how unreasonable it might have been, is recognized by the law as a defense. There are several deficiencies in this instruction. First, it purports to apply the defense of mistake of fact to a situation where any mistake would have amounted only to ignorance of the law, which is no defense at all. Manee, 26 M.J. at 249. In that respect the instruction was a windfall for Captain Lancaster, and not an error to her prejudice. The second deficiency, however, is that the instruction has as a necessary predicate that the use of leftover prescription drugs for another ailment constitutes wrongful use as a matter of law. We find no basis for this conclusion. We have found no specific provision in any statute or punitive regulation prohibiting a person for whom a drug is prescribed from retaining unused amounts of the drug and later taking it for another ailment. We have found no court decision or commentary interpreting any criminal statute as creating such an offense. In fact, what little authority exists tends in the opposite direction. The Court of Military Appeals has said several times in dicta, “[A person] who possesses a drug pursuant to a valid prescription, ..., is of course relieved of criminal responsibility.” United States v. West, 15 U.S.C.M.A. 3, 6, 34 C.M.R. 449, 452, 1964 WL 5046 (1964) (quoting United States v. Greenwood, 6 U.S.C.M.A. 209, 213, 19 C.M.R. 335, 339, 1955 WL 3447 (1955)). Until 1982," }, { "docid": "23275427", "title": "", "text": "in cases like Stein-ruck, the Court affirmed that the military judge had a sua sponte duty to give such an instruction. Since this principle seems so well-established, we do not believe that the drafters of the 1984 Manual would have attempted to change it without giving a more specific indication of that intent. Thus, as Judge DeFord held in his persuasive opinion for a unanimous court in United States v. Johnson, 25 M.J. 691 (A.C.M.R.1987), we conclude that the right to an instruction on reasonable mistake of fact in a rape case, when appropriately raised, is not waived by a defense failure to request such an instruction. B Of course, the military judge’s duty to give the instruction exists only when the evidence reasonably raises the affirmative defense. In Ginn, which concerned instructions to the members in a murder trial, the Court reasoned that, since the duty to instruct on self-defense must spring from the same source as, and is directly related to, the duty to instruct on lesser included offenses, the same test should apply in each instance. There must be some evidence from which a reasonable inference can be drawn that the affirmative defense was in issue. 1 U.S.C.M.A. at 457, 4 C.M.R. at 49. We believe that, with respect to other offenses and other affirmative defenses, a parallel also exists between the test for a sua sponte duty to instruct on a lesser-included offense and the test for instructing on an affirmative defense. United States v. Heims, 3 U.S.C.M.A. 418, 12 C.M.R. 174 (1953). Thus, in the present context, we can apply the standard which the Court used in United States v. Jackson, 12 M.J. 163, 166-67 (C.M.A.1981), in discussing a military judge’s duty to instruct sua sponte on a lesser-included offense: It is not necessary that the evidence which raises an issue be compelling or convincing beyond a reasonable doubt. Instead, the instructional duty arises whenever “some evidence” is presented to which the fact finders might “attach credit if” they so desire. (Citation omitted.) C Unfortunately for appellant, our scrutiny of the record has not uncovered" }, { "docid": "14110288", "title": "", "text": "The prosecution has then chosen not to introduce any further evidence, and on my own motion I necessarily then found the accused not guilty of a violation of the Uniform Code of Military Justice under Article 85 and those words which I did not read to you from that specification. Therefore, there will be no necessity for you to hear any facts in this case or to make a finding. I have accepted Private SCHILLER’s guilty plea to the violation of unauthorized absence under Article 86 of the Uniform Code. Thus, while both trial counsel and the military judge brought to the members attention the fact of appellant’s guilt respecting an unauthorized absence offense, the members, while hearing the evidence and deliberating and deciding upon an appropriate sentence for appellant, had in front of them indicia of a much more serious offense. This was clearly error. United States v. Dy, 46 C.M.R. 521 (N.C.M.R. 1972). Under the circumstances, we are not prepared to say that trial defense counsel waived the error by failing to object. See United States v. Heflin, 1 M.J. 131,133 n. 8 (C.M.A.1975) (note text accompanying footnote 8). Because of this error, we have determined that there was fair risk of prejudice to appellant during the members’ sentencing deliberations. Cf. United States v. Moore, 1 M.J. 940 (N.C.M.R.1976). The appropriate remedy, as we perceive it, see Dy, supra at 522, needed to purge the record of the ascertained prejudice, is reassessment of the sentence. Appellant has now been convicted at two trials by court-martial. His prior sentence included a bad-conduct discharge which was suspended for one year effective 1 November 1977. Appellant’s present offense was complete as of 21 February 1978, United States v. Lovell, 7 U.S.C.M.A. 445, 22 C.M.R. 235 (1956), well within the one-year suspension period. Upon appellant’s return to military jurisdiction on 11 April 1979, the appropriate military authority could have taken steps to vacate the suspension without the necessity of further judicial proceedings. See United States v. Bingham, 3 M.J. 119 (C.M.A.1977) and United States v. Rozycki, 3 M.J. 127 (C.M.A.1977). This was" }, { "docid": "21787696", "title": "", "text": "it was reversible error for the military judge to fail to instruct on the elements of larceny. We do not agree. The military judge has the responsibility to ensure that the members are instructed on all issues, theories, and lesser included offenses reasonably raised by the evidence. United States v. Verdi, 5 M.J. 330 (C.M.A.1978); United States v. McGee, 1 M.J. 193 (C.M.A.1975). This is true even when the evidence as to the lesser included offense is weak or unworthy of belief. United States v. Moore, 16 U.S.C.M.A. 375, 36 C.M.R. 531 (1966). Appellant’s theory in this case was not that no robbery was being committed. His theory was that he was in no way connected with the robbery. His account was that, half asleep, he stumbled from the car, kicking out an object he picked up and discovered was a knife; that he then had a wallet thrust into his hand without knowing what it was; and that, having thereby come into possession of N’s money with no criminal intent, he later formed the intent to wrongfully withhold $5.00. Appellant therefore denied any wrongful “taking” of N’s money- If N’s money was wrongfully taken from him, as distinguished from wrongfully withheld, it was taken by putting him in fear of personal injury. That is robbery— the offense upon which the members were instructed. There is no evidence in the record from which the members could reasonably find that appellant wrongfully took N’s money but did not rob him. No instruction on a “wrongful taking” larceny was appropriate under these facts. United States v. Williams, 9 U.S.C.M.A. 3, 25 C.M.R. 265 (1958). Appellant argues that the members could have found that appellant wrongfully withheld more than $5.00, and that an instruction on larceny by “wrongfully withholding” was required. It is possible, although extremely unlikely, that the members could have believed appellant’s story that he lawfully obtained the wallet, but then disbelieved his testimony that he only took $5.00 and found from the circumstantial evidence that he withheld at least $70 or all the money. However incredible this version of the" }, { "docid": "23710880", "title": "", "text": "defense, Jackson’s counsel pursued that theory right through his closing argument. The following excerpts from that presentation illustrate the point: We are not suggesting that Rooney is a liar and totally poor of character. We’re simply suggesting to you that she has given inconsistent versions explainably, because she simply was not aware of what was going on at the time. She drew certain conclusions later which were false. And then of course once she has drawn the conclusions and made her move, she has a certain vested interest in seeing the case through. That is the explanation. sic # jf: * * * [W]e don't deny that Jackson was in her room. * * * * *. * Gentleman [sic], Lieutenant Martin, we cannot emphasize enough, that you do not have to conclude that Rooney is a liar, in order to conclude that she is mistaken, as to the actual fact of rape. We’re not asking you to conclude that Rooney is a liar. II It is a well-established principle of military law that the military judge must properly instruct members on all lesser included offenses reasonably raised by the evidence. Indeed, so important is this duty that it arises saa sponte under appropriate circumstances, even without a defense request. United States v. Clark, 22 U.S.C.M.A. 576, 48 C.M.R. 83 (1973). It is not necessary that the evidence which raises an issue be compelling or convincing beyond a reasonable doubt. United States v. Jack son, 6 M.J. 261, 263 n.3 (C.M.A.1979). See United States v. Judd, 11 U.S.C.M.A. 164, 28 C.M.R. 388 (1960). Instead, the instructional duty arises whenever “some evidence” is presented to which the fact finders might “attach credit if” they so desire. United States v. Evans, 17 U.S.C.M.A. 238, 242, 38 C.M.R. 36, 40 (1967). As the Supreme Court put it in Sansone v. United States, 380 U.S. 343, 350, 85 S.Ct. 1004, 1009, 13 L.Ed.2d 882 (1965): A lesser-ineluded offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the" }, { "docid": "12102557", "title": "", "text": "hold that, with respect to the possession offense, the aiding and abetting instruction was not only superfluous but misleading. While the other instructions given by the military judge were legally correct, we cannot disregard the misleading effect of the aider and abettor instructions in this case. See United States v. Cauley, 12 M.J. 484, 486 (C.M.A.1982); United States v. Pennington, 21 U.S.C.M.A. 461, 45 C.M.R. 235 (1972). The erroneous aider and abettor instruction virtually occluded the appellant’s defense. Since there is a reasonable likelihood that the instructions caused the appellant to be convicted on an erroneous premise, reversal is required. We note in passing that the military judge defined “possession” but did not tailor his instruction to the defense theory that the appellant’s momentary possession was insufficient exercise of dominion and control to constitute “possession.” See United States v. Agee, 597 F.2d 350, 360 (3d Cir. 1977); People v. Mijares, 6 Cal.3d 45, 99 Cal.Rptr. 139, 491 P.2d 1115 (1971) (en banc); State v. Hogue, 52 Haw. 660, 486 P.2d 403 (1971). However, in view of our holding regarding the aider and abettor instruction we need not decide whether the military judge’s instruction on the element of possession was adequate in the absence of a defense objection or request for further amplification. The findings of guilty and the sentence are set aside. A rehearing may be ordered by the same or a different convening authority. Senior Judge CARNE and Judge O’DONNELL concur. The defense objected to this part of the instruction and the objection was properly overruled. Implicit in the defense of mistake of fact is that “the mistaken belief must be of such a nature that the conduct would have been lawful had the facts been as they were reasonably believed to be.” United States v. Rowan, 4 U.S.C.M.A. 430, 433, 16 C.M.R. 4, 7 (1954). See also, United States v. Greenwood, 6 U.S.C.M.A. 209, 216, 19 C.M.R. 335, 342 (1955). An “accused’s belief that he possessed ... an illegal drug other than the one charged is not exonerating.” United States v. Coker, 2 M.J. 304, 308 (A.F.C.M.R.1976), reversed" }, { "docid": "12139443", "title": "", "text": "even occurred as alleged, e. g., indecent assault by fondling the victim’s vagina. United States v. Jones, 10 U.S.C.M.A. 122, 27 C.M.R. 196 (1959); United States v. Burt, 45 C.M.R. 557 (A.F.C.M.R.1972), pet. denied, 45 C.M.R. 928. Here, as in the cited cases, the accused claimed no specific mistake as regards his own conduct. He, in essence, asserted that Pamela’s initial behavior and her subsequent acquiescence in the face of his sexual advances added up to acceptance of and cooperation with his aggressive behavior. As stated by the Court of Military Appeals in United States v. Jones, supra, 27 C.M.R. at page 202, and fully applicable here: In short, the accused’s testimony only raised a factual issue of consent which was presented to the court under full and proper instructions and was determined adversely to him. Having so found, the military judge’s instruction on the perceived defense of mistake of fact was a gratuity which, in these circumstances, could only have benefited the accused. See United States v. Amie, 7 U.S.C.M.A. 514, 22 C.M.R. 304 (1957); United States v. Tucker, 14 U.S.C.M.A. 376, 34 C.M.R. 156 (1964); United States v. Roeder, 17 U.S.C.M.A. 447, 38 C.M.R. 245 (1968). Even assuming for the purpose of this discussion that mistake of fact as to consent is a valid defense, and was raised by the instant circumstances, the accused would still be entitled to no relief. In our judgment, the trial judge’s instruction that such mistake must be both honest and reasonable to be exonerating (which, we note, was substantially as requested by trial defense counsel) stated the proper standard. Appellate defense counsel, in support of their position that a mistake of fact as to consent need only be honestly held by the accused, cite decisions of the Court of Military Appeals holding that indecent assault is a specific intent offense. United States v. Burden, 2 U.S.C.M.A. 547, 10 C.M.R. 45 (1953); United States v. Wycliff, 3 U.S.C.M.A. 38,11 C.M.R. 38 (1953). They correctly observe that where an offense involves a specific rather than a general criminal intent, the rule, almost without exception," }, { "docid": "12131167", "title": "", "text": "Desroe, 6 U.S.C.M.A. 681, 691, 21 C.M.R. 3, 13 (1956). See also United States v. Judkins, 14 U.S.C.M.A. 452, 34 C.M.R. 232 (1964). Once there is some evidence of fear in the record, it is for the jury to make “the ultimate determination of the existence and degree of such fear.” Id. at 456, 34 C.M.R. at 236. What the Army Board of Review said in United States v. Roman, 40 C.M.R. 561, 565-66 (1969), makes the key point: We do not believe that a positive statement of fear, a form of emotional agitation, necessarily should be the decisive factor in resolving the issue under consideration. Rather, the existence of fear itself, from whatever source, is determinative of the question. Thus, where, as here, adequate provocation and fear are inferable from the total circumstances as reasonable alternatives to the government’s interpretation of the evidence, it is enough to place that offense in issue. We are persuaded, too, that our conclusion is unassailable, for the law officer also concluded that fear was reasonably in issue, otherwise he would not have instructed on self-defense [ ] There is evidence of record that McNeil had provoked and terrorized the appellant through several confrontations over a period of time prior to the shooting incident — evidence from which the jury could have concluded that the appellant acted out of provocation and fear so as to reduce the legal result of his action to attempted voluntary manslaughter. United States v. Clark, 22 U.S.C.M.A. 576, 48 C.M.R. 83 (1973). Under these circumstances, it was incumbent upon the trial judge to instruct on the offenses raised by the evidence, whether or not requested by the defense counsel. United States v. Graves, 1 M.J. 50 (C.M.A.1975). The decision of the United States Army Court of Military Review is reversed as to specification 1 of the charge and the sentence. In all other respects, it is affirmed. The record of trial is returned to the Judge Advocate General of the Army for referral to the Court of Military Review which may either affirm the lesser offense of attempted voluntary" }, { "docid": "17135662", "title": "", "text": "the accused admitted previously that he was not entrapped into committing the offense and was in fact guilty of distribution of marijuana. Before accepting a plea of guilty, the military judge must conduct a searching and detailed inquiry of the accused to determine if he understands his plea, if it is entered voluntarily, and if the accused is in fact guilty. United States v. Davenport, 9 M.J. 364 (C.M.A.1980); United States v. Care, 18 U.S.C.M.A. 535, 40 C.M.R. 247 (1969). If any defense is raised by the accused, the military judge should explain the defense to the accused and should not accept the plea of guilty unless the accused admits facts which negate the defense. Manual for Courts-Martial, United States, 1984, Rule for Courts-Martial 910(e) discussion. In order to set a plea aside, there must be some substantial conflict with the pleas of guilty. United States v. Stewart, 29 M.J. 92 (C.M.A.1989); United States v. Hebert, 1 M.J. 84, 86 (C.M.A.1975). Where a possible defense is raised during the inquiry, the military judge must insure that the defense is not available to an accused. United States v. Jemmings, 1 M.J. 414 (C.M.A.1976). If an accused sets up matters inconsistent with his guilty plea after entry of that plea, such conflict must be resolved. United States v. Logan, 22 U.S.C.M.A. 349, 47 C.M.R. 1 (1973); United States v. Timmins, 21 U.S.C.M.A. 475, 45 C.M.R. 249 (1975). In the case before us, appellant raised the possible defense of entrapment. Although he disavowed the defense during the providence inquiry, he returned to it during the presentencing phase of the trial. We believe this was in substantial conflict with his plea of guilty. Appellant’s unsworn statement bothers us, as it appears to have bothered the military judge. The military judge should have reopened the providence inquiry to settle this matter. From the record, we cannot conclude that appellant was convinced of his guilt of the offense. Consequently, we hold that appellant’s plea of guilty to the offense of distribution of marijuana was improvident. Our decision does not impact on the remaining offense to which" }, { "docid": "12115154", "title": "", "text": "Rowan, [4 U.S.C.M.A. 430, 16 C.M.R. 4 (1954)], we observed that one who acquires property in the honest belief that he is entitled thereto has not established the criminal intent necessary to establish larceny. Thus we rejected the view that an accused may avail himself of the defense of mistake of fact in a larceny case only if the honest mistake was based upon reasonable grounds. The Manual provision now under discussion [Manual for Courts-Martial, United States, 1951, paragraph 154a (4)] is couched in similar language, and it contains the phrase, “an honest and reasonable mistake of law.” (Emphasis supplied.) We are sure that the objection voiced in Rowan applies as well to the requirement of care laid down in the Manual with respect to the defense of mistake of law. Any other result would appear to be both illogical and unjust . . . Therefore, we hold that one accused of larceny who contends that he had acted under an honest claim of right in obtaining property allegedly stolen is entitled to have that defense — whether it be one of mistake of law or fact — submitted to the court-martial in terms of honest misconception alone. [Emphasis supplied.] See also United States v. Tatmon, 23 C.M.R. 841 (A.F.B.R.1957); United States v. McCieod, 18 C.M.R. 814 (A.F.B.R.1955). . See United States v. Tobin, supra, at page 427, wherein the Court commented: “We need not decide, therefore, whether the offense of carrying a concealed weapon requires a specific intent to conceal it. But see, United States v. Thompson, 3 U.S.C.M.A. 620, 14 C.M.R. 38.” . United States v. Tucker, 14 U.S.C.M.A. 376, 380, 34 C.M.R. 156, 160 (1964): When a particular mental state is required to be established, the accused may controvert its presence by offering evidence that, at the time he committed the act alleged, he was mistaken as to, or ignorant of, facts essential to the existence of the necessary mens rea. . United States v. Sicley, supra, at page 127: Conceding the existence of authority to the contrary, we nevertheless expressly adopt the view that the defense" }, { "docid": "23531268", "title": "", "text": "for Courts-Martial, United States, 1969 (Revised edition). Fur thermore, even under Mil.R.Evid. 4126, the evidence might have been admissible, because it was closely related to consent and might have tended to support a claim of mistake of fact. Cf. United States v. Hollimon, 16 M.J. 164 (C.M.A. 1983); United States v. Dorsey, 16 M.J. 1 (C.M.A. 1983). In view of the court-martial’s right to call witnesses, the military judge should have given a more positive answer to the court member’s question. Because of the defense’s failure to call Liles originally or to request an opportunity to call him as a witness after the court member’s question, we are reluctant to find prejudice in the judge’s instruction. This is especially so, since the instruction, under one reading, might have been interpreted to mean that the court members could view the absence of testimony from Liles as giving rise to a reasonable doubt of appellant’s guilt, and since none of the court members ever stated definitely that they wished to have Liles testify if it were “legally] possible” for him to do so. III The military judge has a responsibility to instruct the court members on potential defenses. See United States v. Gaiter, 1 M.J. 54, 56 (C.M.A. 1975); United States v. Graves, 1 M.J. 50, 53 (C.M.A. 1975). Usually an honest and reasonable mistake of fact is a defense, even in a crime involving general criminal intent. See, e.g., United States v. Scheunemann, 14 U.S.C.M.A. 479, 34 C.M.R. 259 (1964). In paragraph 1996, the Manual for Courts-Martial expresses one exception to this principle when it states — in accord with considerable precedent — that ignorance or misinformation as to the true age of the victim is no defense in a prosecution for carnal knowledge. However, paragraph 199a, which deals with rape, expresses no such exception as to consent. Likewise, we perceive no occasion to deviate in rape cases from the principle that an accused can be excused by an honest and reasonable mistake of fact. The Government contends that a mistake of fact cannot be honest and reasonable if the accused" }, { "docid": "15766360", "title": "", "text": "doubt, viewing the evidence in the light most favorable to the government. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The test for factual sufficiency is whether, after weighing all the evidence in the record and making allowance for not having personally observed the witnesses, we are convinced of appellant’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324 (C.M.A.1987). If the appellant actually, albeit erroneously, believed that he had authorized transition leave and (after 20 January 1995) that he was discharged from the Army, he would not be guilty of desertion. If this belief were objectively reasonable, this would also constitute a defense to absence without authority. United, States v. King, 27 M.J. 327 (C.M.A.1989); United States v. Vance, 17 U.S.C.M.A. 444, 38 C.M.R. 242, 1968 WL 5378 (1968); United States v. Holder, 7 U.S.C.M.A. 213, 22 C.M.R. 3, 1956 WL 4723 (1956). We find that the MEDDAC commander retained command authority over appellant after 8 November 1994, such that he had the authority to flag appellant on 16 November. The orders assigning appellant to the transition point had a reporting date of 18 November 1994. The military judge found, and we agree, that until that reporting date, appellant remained subject to the authority of the MEDDAC commander. Normal procedure calls for the soldier to report to the transition point on the date of transition. Army Reg. 635-10, Personnel Separations: Processing Personnel for Separation, para. 3-1.1 (1 July 1984); Dep’t of Army Pam. 600-8-11, Military Personnel Office Separation Processing Procedures, Table 2-1-2, Rule 4 (1 Mar. 1982). Moreover, appellant did not physically vacate the MEDDAC until 21 November 1994. Based on all these circumstances, we find that appellant remained subject to the authority of the MEDDAC commander. Therefore, the MEDDAC commander had authority to initiate the flag and to cancel appellant’s transition leave. Accordingly, appellant’s absence from 28 November 1994 to 15 February 1995 was unauthorized. We are satisfied that appellant intended to remain away from his unit and the Army permanently. Appellant does not contend that he intended to return;" }, { "docid": "15766359", "title": "", "text": "never received a valid discharge means that he remained subject to court-martial jurisdiction, even for offenses committed after his original ETS. Poole, 30 M.J. 149. Accordingly, we find that the court-martial had jurisdiction to try appellant on all the charges referred to it. B. Desertion Appellant also contends that, because his absence spanned the period of his scheduled transition leave and discharge, his absence was authorized and, therefore, the evidence is legally and factually insufficient to support the findings of guilty of desertion and the included offense of absence without leave. More specifically, appellant contends that, because he had already signed in to the transition point, the MEDDAC company commander lacked the authority to flag appellant and to cancel appellant’s transition leave. Therefore, when appellant departed, he was on authorized transition leave. Appellant also argues that the same circumstances support a mistake of fact defense for desertion and the underlying absence without leave. In testing for legal sufficiency, we must determine whether a reasonable fact finder could find all the essential elements beyond a reasonable doubt, viewing the evidence in the light most favorable to the government. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). The test for factual sufficiency is whether, after weighing all the evidence in the record and making allowance for not having personally observed the witnesses, we are convinced of appellant’s guilt beyond a reasonable doubt. United States v. Turner, 25 M.J. 324 (C.M.A.1987). If the appellant actually, albeit erroneously, believed that he had authorized transition leave and (after 20 January 1995) that he was discharged from the Army, he would not be guilty of desertion. If this belief were objectively reasonable, this would also constitute a defense to absence without authority. United, States v. King, 27 M.J. 327 (C.M.A.1989); United States v. Vance, 17 U.S.C.M.A. 444, 38 C.M.R. 242, 1968 WL 5378 (1968); United States v. Holder, 7 U.S.C.M.A. 213, 22 C.M.R. 3, 1956 WL 4723 (1956). We find that the MEDDAC commander retained command authority over appellant after 8 November 1994, such that he had the authority to flag" }, { "docid": "1186879", "title": "", "text": "can be tested for prejudice. Upon our initial review of the record, we specified the issue to appellate counsel to receive their views on the impact of the instructional error. Appellate government counsel contend that the misstated instruction is “nonsensical,” and therefore harmless, because it indicates that the accused could not be convicted unless he was “not aware that he was using a controlled substance.” Appellate defense counsel, on the other hand, point out that since the members were given the instruction orally, they may well have comprehended it as a logically (albeit not legally) correct statement. That is, the members may have understood from the instruction that Alford “had the burden to prove beyond a reasonable doubt his lack of knowledge of the contraband nature of the substance.” It is this latter possibility which must be examined in assessing the prejudicial impact of the instructional error. The issue we now face is whether the members were misled by the error. In evaluating the error, we consider it in the context of the instructions in their entirety. Clark, 7 M.J. 178; United States v. Buchana, 19 U.S.C.M.A. 394, 41 C.M.R. 394 (1970); United States v. Cotton, 13 U.S.C.M.A. 176, 32 C.M.R. 176 (1962). In United States v. Hatchett, 2 U.S.C.M.A. 482, 9 C.M.R. 112 (1953), the Court of Military Appeals observed: ... there is a well-understood rule of law, i.e., that instructions must be considered in their entirety and if, when gathered together by their four corners, they state the law properly and with sufficient clarity to be understood by the members of the court-martial, then they are not prejudicial even though one sentence may be technically incorrect. 9 C.M.R. at 118. See also Rose v. Clark, 478 U.S. 570, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986); United States v. Giordano, 15 U.S. C.M.A. 163, 35 C.M.R. 135 (1964). Considering the complete instructions in this case, we are confident that the court members were not misled by the one erroneous statement of the military judge. Shortly after his misstatement, the trial judge instructed that use of a controlled substance is" }, { "docid": "11265271", "title": "", "text": "military judge’s view, which seems reasonable to us, the appellant’s receipt of BAQ at the “with dependents” rate was distinguishable from one Jones' receipt of military pay as an absentee without leave, see United States v. Jones, 26 M.J. 1009 (A.C.M.R.1988), inasmuch as an absentee without leave is not legally entitled to receive military pay in the first place. See also United States v. Meeks, 32 M.J. 1033 (A.F.C.M.R.1991). Consequently, he found that the appellant was not guilty of either the charged larceny or of the included wrongful appropriation; but, lest the appellant be acquitted altogether, the military judge invoked the rule announced in United States v. Thomas, 13 U.S.C.M.A. 278, 32 C.M.R. 278 (1962), against recognizing factual or legal impossibility as a defense to attempts; and, having determined to his own satisfaction that the appellant had believed that his receipt and retention of the excess allowances were wrongful, the military judge found him guilty of attempted wrongful appropriation and, notwithstanding his 15 years of honorable service, sentenced him to a bad-conduct discharge. The appellant contends that the military judge misapplied the Thomas rule to this case, and we agree. Thomas holds that, even though it was factually or legally impossible for an accused to commit an offense under the circumstances as they actually were, the accused may, nevertheless, be convicted of an attempt if he would be guilty of a completed crime, had the circumstances been as he believed them to be. But, where the accused’s mistake relates, not to the circumstances of the supposed offense, but only to its wrongfulness or criminality, there can be no attempt, for to impose criminal liability for attempts in such cases would be tantamount to inventing new crimes. See Thomas, 13 U.S.C.M.A. at 291, 32 C.M.R. at 291. In this case, the appellant unmistakenly knew that he was lawfully married; that he was living physically separate and apart from his spouse without a legal separation; that he was receiving BAQ at the “with dependents” rate; and that he was not using any of that money to support the dependent on account of" }, { "docid": "12098581", "title": "", "text": "commander prior to recovering and surrendering the stereo equipment. However, during the presentation of the defense case on the merits, the appellant testified that he and Foster had transported the stereo equipment to the off-post residence of Specialist Moore. Throughout the trial, the appellant maintained that he thought Foster owned the equipment. Trial defense counsel’s opening statement, direct examination of the appellant, and final argument all adopted the position that the appellant did not participate in the larceny or know that the property was stolen at the time he assisted in its asportation, but that he affirmatively cooperated in recovering the stolen property once he knew it was stolen. The defense made no effort to suppress evidence that the appellant recovered the stolen property and made no request for instructions pertaining thereto. We find that the appellant effectively consented to the use of evidence of his surrender of the property. United States v. Gustafson, 17 U.S.C.M.A. 150, 37 C.M.R. 414 (1967); see Manual for Courts-Martial, United States, 1969 (Revised edition), par. 140a (2); United States v. Bertelson, 3 M.J. 314 (C.M.A.1977); United States v. Heflin, 1 M.J. 131 (C.M.A.1975); United States v. Anderson, 1 M.J. 688 (N.C.M.R. 1975). We need not decide whether the appellant was properly advised of his rights since he consented to the consideration of the evidence and adopted it as his own. We hold that the military judge did not err by receiving evidence that the appellant recovered and surrendered the stolen property. II In his second assigned error, appellant contends that he was improperly cross-examined by the trial counsel regarding his refusal to make a statement when interviewed by the CID. He also contends that the trial counsel’s argument on the merits was improper because it called attention to the appellant’s exercise of his privilege against self-incrimination. On direct examination by the trial defense counsel, the appellant testified that he made no association between the stereo equipment which he took to Moore’s residence and the stolen property because the CID had told him that the stolen equipment included speakers. He testified that he was unaware" }, { "docid": "16009055", "title": "", "text": "the situation. I think a naked girl, you know, she’s not going to resist. Well, here, you know, you don’t pass up too many opportunities having sex.” Stanton maintained Mrs. S did not resist and never said “stop” and never screamed at any time. According to Wilson, Mrs. S consented because: “First of all, she was in my room, on my bed half naked. When I started to have sex with her, she did not resist or say anthing as to ‘don’t’ ”. The medical examination of Mrs. S conducted early the next morning disclosed no bruises or cuts. The defense also presented evidence that Mrs. S had a reputation for untruthfulness. II The military judge refused to give a defense requested instruction on mistake of fact. The theory supporting the proposed instruction was that each accused could have justifiably assumed the existence of consent if the alleged victim’s conduct was of such a nature as to create an honest and reasonable belief she had consented. It is by no means clear that mistake of fact is a defense to an allegation of rape. The possibility that it might exist was suggested by Judge Brosman’s dissent in United States v. Short, 4 U.S.C.M.A. 437, 16 C.M.R. 11 (1954), and Judge Kilday’s majority opinion in United States v. Rolder, 17 U.S.C.M.A. 447, 38 C.M.R. 245 (1968). See also United States v. Henderson, 4 U.S.C. M.A. 268, 15 C.M.R. 268 (1954); Cf. United States v. Jones, 10 U.S.C.M.A. 122, 27 C.M.R. 196 (1959). The Courts of Military Review have never directly discussed this question. United States v. Burt, 45 C.M.R. 557 (A.F.C.M.R.1971), pet. denied, 45 C.M.R. 928 (C.M.A.1971); United States v. Steele, 43 C.M.R. 845 (A.C.M.R.1971); Cf. United States v. Keeve, 2 M.J. 290 (A.F.C.M.R. 1976) n. 2; Cf. United States v. Lewis, 6 M.J. 581 (A.C.M.R.1978). In United States v. Copeland, 21 C.M.R. 838 (A.F.B.R.1954), pet. denied, 22 C.M.R. 331 (C.M.A.1956), an Air Force Board of Review reasoned that the victim either consented or she did not. Thus there was no issue raised as to any mistake about it one way" } ]

[ { "docid": "387724", "title": "", "text": "of his membership in such organizations and participation in their activities, was not “attached to the principles of the Constitution of the United States, and well disposed to the good order and happiness of the same.” In re Saralieff, above. Therefore, defendant obtained his certificate of citizenship illegally. There is no merit to the defense of unconstitutionality of the naturalization law or in laches. United States v. Spohrer, C.C., 1910, 175 F. 440, United States v. Ali, D.C., 1925, 7 F.2d 728, and United States v. Marino, D.C., 1939, 27 F.Supp. 155. The government has maintained the burden of proof in the present proceeding (United States v. Rovin, D.C., 1926, 12 F.2d 942), by showing that defendant was not attached to the Constitution at the time he became a citizen. It is therefore ordered that the decree of naturalization and certificate of citizenship issued to the defendant be declared void and be set aside, upon preparation of findings of fact and conclusions of law by the government. But see United States v. Rovin, D.C.,1926, 12 F.2d 942; United States v. Ortner, 1933, No. E 234—Phœnix, Ariz.; Strecker v. Kessler, 5 Cir., 1938, 95 F.2d 976 (affirmed on different ground in 1938, 305 U.S. 587), 59 S.Ct. 102, 83 L.Ed. 371. Kenmotsu v. Nagle, 9 Cir., 1930, 44 F.2d 953; Saksagansky v. Weedin, 9 Cir., 1931, 53 F.2d 13; Ex parte Vilarino, 9 Cir., 1931, 50 F.2d 582; Sormunen v. Nagle, 9 Cir., 1932, 59 F.2d 398, 399; Wolck v. Weedin, 9 Cir., 1932, 58 F.2d 928." } ]

[ { "docid": "11005623", "title": "", "text": "HUTCHESON, Circuit Judge. From a judgment entered against him in a denaturalization proceeding brought to cancel his certificate for fraud in its procurement, defendant has appealed. Born of war hysteria and ideological conflicts, this is another of those fortunately rare proceedings in which an un-American intolerance, of opinions not acceptable to the majority, puts our adherence to American constitutional principles not only of tolerance but of justice to the test lest, done mere lip service to, they become a byword and a hissing. In form it was a judicial inquiry begun in September, 1942, and concluded in February, 1943, into whether the defendant, a German born naturalized citizen, had, in 1935, more than seven years before, secured his citizenship by fraud and, therefore, illegally, and because thereof should have his certificate cancelled. Its result was to take his citizenship away (1) because, and only because of his frank assertion before December, 1941, of views which, though entertained and expressed by him at a time when millions of other American citizens, naturalized and native born, were entitled to, and did, express the same views, were regarded as incompatible with the oath of citizenship he took five years before and, therefore, as proof that he took the oath falsely and in fraud; and (2) because, as he had a statutory right to do, he considered, and made inquiries in 1940 regarding, expatriating himself, though he did nothing to effectively carry this out, and while the United States was still neutral, completely abandoned the idea. The district judge’s findings, conclusions and judgment were handed down before the Supreme Court had, in the Schneider-man case, Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, authoritatively rejected the views acted on by some, but by no means all, of the inferior federal judges, and never by the Supreme Court; that naturalized, unlike native born, citizens remain indefinitely under judicial tutelage; that because they are naturalized instead of native bom citizens, their thoughts and speech are subject to a jealous surveillance, so that in effect their citizenship is held by a tenure" }, { "docid": "13817009", "title": "", "text": "cancellation as provided in the statute (8 U.S.C.A. § 405) include illegal procurement as well as fraud; and it has been held in many cases that certificates should be cancelled, where the alien in fact lacked one or more of the essential requirements for naturalization, even though he was not guilty of fraud in procuring the certificate of citizenship; or where there is some essential defect in the naturalization procedure; for instances, where the final hearing was not held in open court, but in the judge’s chambers, United States v. Ginsberg, 243 U.S. 472, 37 S.Ct. 422, 61 L.Ed. 853; where the certificate of arrival was not filed with the petition, United States v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321; Maney v. United States, 278 U.S. 17, 49 S.Ct. 15, 73 L.Ed. 156; where the alien was ineligible for citizenship under the law by reason of racial status, or other lack of statutory qualifications, United States v. Khan, D.C., 1 F.2d 1006; United States v. Plaistow, D.C., 189 F. 1006; United States v. Ali, D.C., 7 F.2d 728; United States v. Sakharam Ganesh Pandit, D.C., 297 F. 529; Akhay Kumar Mozumdar v. United States, 9 Cir., 299 F. 240; United States v. Bhagat Singh Thind, 261 U.S. 204, 43 S.Ct. 338, 67 L.Ed. 616; Grahl v. United States, 7 Cir., 261 F. 487; United States v. Unger, D.C., 26 F.2d 114; and where in fact the alien had not resided within the United States for five years previous to his naturalisation. United States v. Cantini, 3 Cir., 212 F. 925; United States v. Griminger, D.C., 236 F. 285; United States v. Simon, C.C., 170 F. 680; United States v. Mulvey, 2 Cir., 232 F. 513, 519. See, also, generally 3 C.J.S., title Aliens, §§ 148-154, pp. 858-860. It may be suggested that the long residence of the alien in this case in the United States since his entry in 1924 and the lapse of time since the grant of the certificate tend to make this a hard case, as the alien was apparently otherwise admissible if" }, { "docid": "19997514", "title": "", "text": "arguments raised by Walus as affirmative defenses in his answer. First, because a certificate of citizenship illegally obtained is void ab initio, contrary to the argument of the defendant, there is no statute of limitations applicable to denaturalization proceedings. 8 U.S.C. § 1451. On its face, the assertion that because the underlying events occurred some thirty-seven years ago, Fifth and Sixth Amendment principles preclude the Government from now bringing this action similarly lacks merit. With the passage of time, the Government’s task may have escalated; however, no constitutional guarantee has been implicated thereby. Finally, even if by such arguments the defendant is attempting to present the defense of laches, that defense is without merit. The defendant’s Certificate of Naturalization was issued only some six years prior to the time this action was filed, and there has been nothing to indicate a lack of diligence by the United States. Therefore, the defense of laches is not available in this denaturalization proceeding. Costello v. United States, 365 U.S. at 281-284, 81 S.Ct. 534; United States v. Oddo, 314 F.2d 115 (2nd Cir. 1963), cert. denied, 373 U.S. 833, 84 S.Ct. 50, 11 L.Ed.2d 63; United States v. Cufari, 120 F.Supp. 941 (D.C.Mass.1954), vacated on other grounds, 217 F.2d 404 (1st Cir. 1954). According to its duty in this case, because of the decision it has reached, this court must now order, and it does hereby order, that judgment be entered in favor of the plaintiff United States of America and against the defendant Frank Walus on all four counts of the United States’ complaint. The order of the United States District Court for the Northern District of Illinois entered on August 18, 1970, admitting Frank Walus, also known as Franciszek Walus, to United States citizenship will be, and the same hereby now is, revoked and set aside. The Certificate of Naturalization (Certificate Number 9308391) issued to this individual will be, and the same hereby now is, ordered canceled. The defendant is hereby permanently enjoined from claiming any rights, privileges or advantages under or through any document evidencing United States citizenship. Finally, the" }, { "docid": "14028546", "title": "", "text": "BLACK, District Judge. In this proceeding I am confronted with a practical problem in psychology. It is my task to determine from the evidence what the defendant in 1912 actually thought of this country and of Germany; where his real allegiance lay; whether the oath he took thirty-one years ago was a sham or from the heart. The government seeks to cancel the naturalization of the defendant in 1912 by the United States District Court for the District of Colorado upon the grounds that the defendant then falsely swore that he intended to renounce forever all allegiance and fidelity to Germany and then falsely swore that he would bear true faith and allegiance to the United States of America. The proceeding is brought under Section 338 of the Nationality Act of 1940, 8 U.S. C.A. § 738. The fact that thirty-one years has elapsed since the defendant was admitted to citizenship does not bar this proceeding to denaturalize him. If the defendant did in truth in April, 1912, intend to retain allegiance to Germany and did not then intend that his sole allegiance should be to the United States, and if such was suffi ciently established by the evidence at this trial then a decree vacating his citizenship should enter in spite of the many years intervening between the entry of the order of naturalization and the trial. That the lapse of time .does not bar the government in this type of proceeding has been established by a number of cases. See United States v. Wursterbarth, D.C.N.J., 249 F. 908; United States v. Darmer, D.C.Wash., 249 F. 989; Schurmann v. United States, 9 Cir., 264 F. 917, 18 A.L.R. 1182; United States v. Herberger, D.C.Wash., 272 F. 278. Therefore, the issue before the court is one of fact. Plaintiff presented about twenty-six witnesses at the trial, which number included the defendant, who was examined in open court at such time as well as previously thereto by deposition, which deposition was admitted in evidence. With the exception of the defendant’s testimony practically all of the witneáses presented by the government, to" }, { "docid": "14735757", "title": "", "text": "The district court had reasoned that the mistake of law resulting in the issuance of the certificate to Friend did not rise to a level of illegality sufficient to permit the certificate’s cancellation. The Attorney General had instituted proceedings to cancel Friend’s certificate of citizenship pursuant to her authority under 8 U.S.C. § 1453, which states in relevant part that “[t]he Attorney General is authorized to cancel any certificate of citizenship ... if it shall appear to the Attorney General’s satisfaction that such document or record was illegally or fraudulently obtained.” 8 U.S.C. § 1453. Noting that U.S. citizenship is regarded by many “as the highest hope of civilized men,” the Supreme Court has stated that, once citizenship has been conferred, it “should not be taken away without the clearest sort of justification and proof.” Schneiderman v. United States, 320 U.S. 118, 122, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943). The Attorney General must demonstrate the alleged illegality by clear and convincing evidence. See id. at 125, 63 S.Ct. 1333. In cases analyzing denatu-ralization proceedings, the Court has also stated, however, that “there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship ‘illegally procured,’ and naturalization that is unlawfully procured can be set aside.” Fedorenko v. United States, 449 U.S. 490, 506, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981); see also Lee Hon Lung v. Dulles, 261 F.2d 719, 723 (9th Cir.1958) (“[A] certificate is ‘illegally procured’ ... if it is later determined that an essential finding of fact in the naturalization proceeding was erroneous.”). This holding is in keeping with the general principle that “ ‘[n]o alien has the slightest right to naturalization unless all statutory requirements are complied with,’ ” and that Congress has the right “not to grant a United States citizen the right to transmit citizenship by descent.” Rogers, 401 U.S. at 830, 91 S.Ct. 1060 (quoting United States v. Ginsberg, 243 U.S. 472, 475, 37 S.Ct. 422, 61 L.Ed. 853 (1917)). Once the district court held" }, { "docid": "3437485", "title": "", "text": "citizenship, he may lose his citizenship in a denaturalization proceeding upon clear proof of the existence of such mental reservation; and to this end Congress has enacted legislation authorizing the bringing of a proceeding in a District Court to avoid citizenship illegally or fraudulently procured. In Johannessen v. United States, supra [225 U.S. 227, 32 S.Ct. 617, 56 L.Ed. 1066], the Court said: “An alien has no moral nor constitutional right to retain the privileges of citizenship if, by false evidence or the like, an imposition has been practiced upon the court, without which the certificate of citizenship could not and would not have been issued. As was well said by Chief Justice Parker in Foster v. [President, etc., of] Essex Bank, 16 Mass. [245], 273, 8 Am.Dec. 135, ‘there is no such thing as a vested right to do wrong.' ” See: United States v. Ginsberg, 243 U. S. 472, 37 S.Ct. 422, 61 L.Ed. 853; United States v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321; Maney v. United States, 278 U.S. 17, 49 S.Ct. 15, 73 L.Ed. 156. In United States v. Kramer, 5 Cir., 262 F. 395, 397, it is said: “American citizenship is a priceless possession, and one who seeks it by naturalization must do so in entire good faith, without any mental reservation whatever, and with the complete intention of yielding his absolute loyalty and allegiance to the country of his adoption. If he does not, he is guilty of fraud in obtaining his certificate of citizenship.” See: Schurmann v. United States, 9 Cir., 264 F. 917, 18 A.L.R. 1182; United States v. Wursterbarth, D.C.N.J., 249 F. 908; United States v. Herberger, D.C.W.D. Wash., 272 F. 278; United States v. De Tolna, D.C.E.D.N.Y., 27 F.2d 984; United States v. Ebell, D.C.W.D.Tex., 44 F.Supp. 43; United States v. Mickley, D.C.E.D. Mich., 44 F.Supp. 735; United States v. Baumgartner, D.C.W.D.Mo., 47 F.Supp. 622; United States v. Bergmann, D.C.S.D. Cal., 47 F.Supp. 765; United States v. Fischer, D.C.S.D.Fla., 48 F.Supp. 7; United States v. Kuhn, D.C.S.D.N.Y., 49 F.Supp. 407; United States v. Schuchhardt, D.C.N.D.Ind. 49" }, { "docid": "15843998", "title": "", "text": "States v. Stoehr, M.D.Pa.1951, 100 F.Supp. 143, 156, not by motion to strike. The defendants also move to strike certain documentary evidence as barred by the doctrine of res judicata. In this connection it is claimed that certain allegedly basic Communist works, such as Foundations of Leninism by J. Stalin, State and Revolution by V. I. Lenin, the History of the Communist Party of the Soviet Union, and the Communist Manifesto by Karl Marx have already been litigated in the case of Schneiderman v. United States, 1943, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, and may not therefore be re-litigated here. The former Schneiderman case was a civil action brought by the Government under the provisions of § 15 of the Act of June 29, 1906, 34 Stat. 596, 8 U.S.C.A. § 405, to cancel the defendant Schneider-man’s certificate of citizenship which had been granted in 1927. In that action the complaint charged defendant Schneiderman had illegally procured his naturalization certificate in that at the time of his naturalization and during the five years preceding his naturalization he “had not behaved as a person attached to the principles of the Constitution of the United States and well disposed to the good order and happiness of the United States, but in truth and in fact during all said time, [he] was a member of and affiliated with and believed in and supported the principles of organizations then known as the Workers (Communist) Party of America and the Young Workers (Communist) League of America, whose principles were opposed to the principles of the Constitution of the United States and * * advocated and taught the overthrow of the Government, Constitution and Laws of the United States by force and violence.” The lower court’s determination that Schneiderman’s citizenship certificate should be cancelled was reversed by the Supreme Court because “the Government has not proved by ‘clear, unequivocal and convincing’ evidence that the naturalization court could not have been satisfied that petitioner was attached to the principles of the Constitution when he was naturalized.” Schneiderman v. United States, supra, 320 U.S. at" }, { "docid": "9389704", "title": "", "text": "the denaturalization decree, that it rested upon “actual fraud”, and that in any event no injunctive relief can be granted. The issue as to the effect of the prior judgment against plaintiff’s father is a difficult one because it poses the legality of a harsh result. Judicial interpretation of the denaturalization statute has provided, in effect, that' plaintiff can be divested of his citizenship without ever having a chance at an effective day in court. The first statute providing for the revocation of naturalization contained no provision as to the effect of cancellation upon the derivative citizenship of a defendant’s wife or child. 34 Stat. 601, 8 U.S.C.A. § 405. However, some of the earlier cancellation cases based upon the ground of- fraud intimated that a cancellation proceeding simply deprived the naturalized person of a privilege that was never rightfully his. Johannessen v. United States, 225 U.S. 227, 32 S.Ct. 613, 56 L. Ed. 1066; Luria v. United States, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101. Subsequent cases reasoned that since no rights were conferred on the denaturalized person by the fraudulent naturalization, no rights could be derived by his wife or child. Cf. Rosenberg v. United States, 3 Cir., 60 F.2d 475; see In re Findan, D.C., 4 F.Supp. 189, 190. This derivative reasoning received Congressional sanction in the Nationality Act of 1940, 8 U.S.C.A. § 501 et seq. Cf. United States v. Orth, D.C., 51 F.Supp. 682. However, it was also held that in the denat-uralization proceeding, these derivative citizens need not be parties. Thus, in Rosenberg v. United States, 3 Cir., 60 F.2d 475, certiorari denied 287 U.S. 645, 53 S.Ct. 91, 77 L.Ed. 558, a wife who claimed derivative citizenship petitioned to intervene in a denaturalization proceeding against her husband. The petition was denied. And United States ex rel. Harrington v. Schlot-feldt, 7 Cir., 136 F.2d 935, certiorari denied Krause v. United States, 327 U.S. 781, 66 S.Ct. 680, 90 L.Ed. 1008, affirmed the action of a trial court in denying an application for the appointment of a guardian ad litem to protect the" }, { "docid": "3117720", "title": "", "text": "good faith and yet, later, have been guilty of adultery, cruelty, desertion, or other statutory ground of divorce. It is well established that no alien may obtain valid naturalization, nor retain it if previously obtained, unless such naturalization was issued in accordance with statutory requirements. United States v. Ginsberg, 1917, 243 U.S. 472, 37 S.Ct. 422, 61 L.Ed. 853; United States v. Ness, 1917, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321; United States v. Schwimmer, 279 U.S. 644, 49 S.Ct. 448, 73 L.Ed. 889; United States v. Bland, 1931, 283 U.S. 636, 51 S.Ct. 569, 75 L.Ed. 1319. Nor is it to be questioned that the actions, statements, writings and other conduct subsequent to naturalization are properly admissible to prove a state of mind at the time of taking the oath of allegiance to the United States, and to show the purpose for which one sought citizenship. Luria v. United States, 231 U.S. 9, 34 S.Ct. 10, 58 L.Ed. 101; United States v. Schlotfeldt, 7 Cir., 136 F.2d 935; United States v. Kramer, 5 Cir., 262 F. 395; Schurmann v. United States, 9 Cir., 264 F. 917, 18 A.L.R. 1182, appeal dismissed 257 U.S. 621, 42 S.Ct. 185, 66 L.Ed. 401. But it is equally well settled by recent decisions of the Federal Courts that the onus of proving fraud or illegality of procurement sufficient to cancel a naturalization certificate rests upon the Government. Schneiderman v. United States, 1943, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796; United States v. Rovin, D.C.1926, 12 F.2d 942; United States v. Sherman, D.C.1941, 40 F.Supp. 478; United States v. Schuchhardt, D.C.1943, 49 F.Supp. 567. The judgment of the District Court is reversed. Reversed." }, { "docid": "13817007", "title": "", "text": "of law that the certificate should be cancelled for this reason. Mere minor irregularities in the naturalization process are not sufficient to warrant cancellation of the certificate, and some cases have held that facts found by the naturalization court, where the Government had intervened and opposed the naturalization, and no appeal had been taken, will not be re-examined in the direct proceedings under 8 U.S.C.A. § 405, in the -absence of fraud or lack of jurisdictional requisites, United States v. Richmond, 3 Cir., 17 F.2d 28; United States v. Hirschhorn, D.C., 21 F.2d 758; United States v. Srednik, 3 Cir., 19 F.2d 71; United States v. Bischof, 2 Cir., 48 F.2d 538; United States v. Shanahan, D.C., 232 F. 169; but here there was no opposition by the Government to the naturalization order, and it has been shown that Parisi’s status when admitted to citizenship lacked the basic conditions on which the naturalization order could have been granted properly. It was, therefore, “illegally procured” even in the absence of actual fraud. Maney v. United States, 278 U.S. 17, 22, 49 S.Ct. 15, 73 L.Ed. 156. In United States v. Ginsberg, 243 U.S. 472, 475, 37 S.Ct. 422, 425, 61 L.Ed. 53, it was said: “No alien has the slightest right to naturalization unless all statutory requirements are complied with; and every certificate of citizenship must be treated as granted upon condition that the government may challenge it, as provided in section 15, and demand its cancelation unless issued in accordance with such requirements. If procured when prescribed qualifications have no existence in fact, it is illegally procured; a manifest mistake by the judge cannot supply these nor render their existence nonessential.” Intentionally false statements in the proceedings by the alien and also concealment of material facts at the hearing have generally been held sufficient basis for cancellation of the- certificate. United States v. Etheridge, D.C., 41 F.2d 762; United States v. Marcus, D.C., 1 F.Supp. 29; United States v. De Francis, 60 App. D.C. 207, 50 F.2d 497; United States v. Albertini, D.C., 206 F. 133. But the grounds for" }, { "docid": "19997462", "title": "", "text": "Cir. 1958). Thus, by sustaining its burden as to the facts alleged in its complaint, the Government demonstrates that it is entitled to have the court enter an appropriate order granting the relief sought in its complaint. The court appreciates that if the relief sought by the Government is ordered, the defendant will be divested of one of his most fundamental rights, that of American citizenship. For this reason, naturalization decrees are not to be revoked without the utmost consideration. To sustain its burden of proof in a denaturalization proceeding, the United States must therefore establish its allegations by evidence that is clear, convincing, unequivocal, and such as does not leave the issue in doubt. See Costello v. United States, 365 U.S. at 269, 81 S.Ct. 534, and Chaunt v. United States, 364 U.S. at 353, 81 S.Ct. 147, both citing Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943) and Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944); see also United States v. Montalbano, 236 F.2d at 758; Petition of Cardines, 366 F.Supp. 700 (D.C. of Guam 1973); Petition of Arevalo, 352 F.Supp. 215 (D.C. of Haw.1972). In the instant proceeding, the placement of this heavy burden on the Government is warranted not only because the right sought to be canceled is a valuable one, but also because of the grave nature of the factual allegations underlying that effort. In his answer, Frank Walus denies the allegations that he committed “any and all of the crimes alleged . . . ”, denies membership in “the Gestapo, “SS” or other similar organizations . . . ”, and denies that he failed to satisfy the good moral character requirement of 8 U.S.C. § 1427(a). As affirmative defenses, the defendant has also alleged that this action is barred by a statute of limitations. He further contends that “(t)o hold any person to answer to alleged criminal activity which occurred between thirty-four and thirty-seven years prior to the filing of any complaint is unconscionable, prejudicial and a deprivation of (his) rights of" }, { "docid": "18027685", "title": "", "text": "Stipulation 40; Ex. 137. 112. During the naturalization application process applicable when Kazys Ciurinskas applied for naturalization in 1954-1955, the applicant swore that the information in the Petition (Form N-405) was correct. Stipulation 41. 113. Kazys Ciurinskas became a naturalized citizen of the United States on February 17, 1955 and was issued Certificate of Naturalization No. 7262096. Stipulation 42. 114. Kazys Ciurinskas has remained a citizen of the United States since February 17,1955. Stipulation 43. CONCLUSIONS OF LAW 115. The subject-matter of this action is within the court’s jurisdiction over this matter. 28 U.S.C. § 1345; 8 U.S.C. § 1451(a). 116. The right to acquire United States citizenship is precious, and evidence justifying revocation of citizenship must be clear, unequivocal and convincing. Fedorenko v. United States, 449 U.S. 490, 505, 101 S.Ct. 737, 746-47, 66 L.Ed.2d 686 (1981). United States v. Kairys, 782 F.2d 1374, 1378 (7th Cir.1986). “[Bjecause of the grave consequences incident to denaturalization proceedings ... a burden rests on the Gov ernment to prove its charges by clear, unequivocal and convincing evidence which does not leave the issue in doubt.” Klapprott v. United States, 335 U.S. 601, 612, 69 S.Ct. 384, 389, 93 L.Ed. 266, 276 (1949); see also Kungys v. United States, 485 U.S. 759, 772, 108 S.Ct. 1537, 1547, 99 L.Ed.2d 839 (1988); Schneiderman v. United States, 320 U.S. 118, 125, 63 S.Ct. 1333, 1336-37, 87 L.Ed. 1796 (1943). 117. No person may be naturalized as a United States citizen who was not lawfully admitted for permanent residence. 8 U.S.C. § 1427(a). 118. An order admitting a person to United States citizenship may be revoked and set aside, and that person’s certifícate of naturalization canceled, on the grounds that such order and certificate were illegally procured. 8 U.S.C. § 1451(a). 119. Because of the importance of the interests at stake, “there must be strict compliance with all the congressionally imposed prerequisites to the acquisition of citizenship. Failure to comply with any of these conditions renders the certificate of citizenship ‘illegally procured’ and naturalization that is unlawfully procured can be set aside.” Fedorenko, 449 U.S. at" }, { "docid": "19997513", "title": "", "text": "during World War II. Acting in that capacity, he did commit acts of unjustified violence which were criminal and must properly be described as war crimes or war atrocities. This information was knowingly concealed by Frank Walus throughout the process of naturalization which resulted in the issuance of his Certificate of Naturalization. Walus’ United States citizenship was therefore illegally procured both because Walus obtained his naturalization by concealment of material facts or by willful misrepresentation and because Walus lacked the good moral character required for United States citizenship. These conclusions have been established by evidence which is clear, convincing, unequivocal and does not leave the issue in doubt. Costello v. United States, 365 U.S. at 269, 81 S.Ct. 534; Chaunt v. United States, 364 U.S. at 353, 81 S.Ct. 147; Schneiderman v. United States, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796 (1943); Baumgartner v. United States, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944), and the various other lower court cases previously cited. In reaching this decision, the court rejects the arguments raised by Walus as affirmative defenses in his answer. First, because a certificate of citizenship illegally obtained is void ab initio, contrary to the argument of the defendant, there is no statute of limitations applicable to denaturalization proceedings. 8 U.S.C. § 1451. On its face, the assertion that because the underlying events occurred some thirty-seven years ago, Fifth and Sixth Amendment principles preclude the Government from now bringing this action similarly lacks merit. With the passage of time, the Government’s task may have escalated; however, no constitutional guarantee has been implicated thereby. Finally, even if by such arguments the defendant is attempting to present the defense of laches, that defense is without merit. The defendant’s Certificate of Naturalization was issued only some six years prior to the time this action was filed, and there has been nothing to indicate a lack of diligence by the United States. Therefore, the defense of laches is not available in this denaturalization proceeding. Costello v. United States, 365 U.S. at 281-284, 81 S.Ct. 534; United States v. Oddo," }, { "docid": "15313257", "title": "", "text": "STALEY, Circuit Judge. This opinion covers two separate appeals which arose from denaturalization proceedings. ' In No. 11,785,' appellant Carmelo Montalbano challenges the order of the District Court for the Eastern District of Pennsylvania revoking his citizenship and cancelling his certificate of naturalization. In No. 11,790, Vito Genovese appeals from a similar order entered as to him by the District Court of New Jersey. The sole question raised by Montalbano, and one of the questions raised by Genovese, is whether plaintiff, United States of America, sustained its burden of establishing that the respective defendants procured United States citizenship fraudulently and illegally. All parties agree that the government’s burden is a heavy one and this court should affirm only if the records contain clear, unequivocal, and convincing evidence which does not leave the issues of fraud or illegality in doubt. Schneiderman v. United States, 1943, 320 U.S. 118, 158, 63 S.Ct. 1333, 87 L.Ed. 1796; Baumgartner v. United States, 1944, 322 U.S. 665, 64 S.Ct. 1240, 88 L.Ed. 1525; United States v. Anastasio, 3 Cir., 1955, 226 F.2d 912, certiorari denied, 1956, 351 U.S. 931, 76 S.Ct. 787. In both cases, the government’s charges rested on the alleged fact that in applying for citizenship each defendant had lied when asked whether he had ever been arrested or charged with violation of any law of the United States or State or any city ordinance or traffic regulation. There is no dispute that both Montalbano and Genovese had criminal records. The record in the Montalbano case shows that on February 15, 1933, Mon-talbano filed with the Immigration and Naturalization Service his “Application for Certificate of Arrival and Preliminary Form for Petition for Citizenship” which admittedly was not prepared by anyone in the Immigration Service, but was sent in by Montalbano or by someone on his behalf and was signed by Mon-talbano. Question 29 on that form, which read “Have you ever been arrest ed or charged with violation of any law of the United States or State or any city ordinance or traffic regulation?” was answered in the negative. On March 15, 1933," }, { "docid": "22689522", "title": "", "text": "petitioner to answer truthfully came from such independent sources and that any connection between the wiretaps and the admissions was too attenuated to require the exclusion of the admissions from evidence. III. In contending that lapse of time should be deemed to bar the Government from instituting this proceeding, the petitioner argues that the doctrine of laches should be applied to denaturalization proceedings, and that in any event, the delay of 27 years before bringing denaturalization proceedings denied him due process of law in the circumstances of the case. It has consistently been held in the lower courts that delay which might support a defense of laches in ordinary equitable proceedings between private litigants will not bar a denaturalization proceeding brought by the Government. See United States v. Ali, 7 F. 2d 728; United States v. Marino, 27 F. Supp. 155; United States v. Cufari, 120 F. Supp. 941, reversed on other grounds, 217 F. 2d 404; United States v. Parisi, 24 F. Supp. 414; United States v. Brass, 37 F. Supp. 698; United States v. Spohrer, 175 F. 440; United States v. Reinsch, 50 F. Supp. 971, reversed on other grounds, 156 F. 2d 678; United States v. Schneiderman, 33 F. Supp. 510, reversed on other grounds, 320 U. S. 118. These cases have applied the principle that laches is not a defense against the sovereign. The reason underlying the principle, said Mr. Justice Story, is “to be found in the great public policy of preserving the public rights, revenues, and property from injury and loss, by the negligence of public officers.” United States v. Hoar, 26 Fed. Cas. 329, 330 (No. 15,373). This Court has consistently. adhered to this principle. See, for example, United States v. Kirkpatrick, 9 Wheat. 720, 735-737; United States v. Knight, 14 Pet. 301, 315; see also United States v. Summerlin, 310 U. S. 414, 416; Board of County Commissioners v. United States, 308 U. S. 343, 351; United States v. Thompson, 98 U. S. 486, 489. None of the cases in this Court considered the question of the application of laches in a" }, { "docid": "5232149", "title": "", "text": "accomplished by a federal judicial order. See United States v. Zucca, 351 U.S. 91, 95 & n.8, 76 S.Ct. 671, 100 L.Ed. 964 (1956); Bindczyck v. Finucane, 342 U.S. 76, 79, 72 S.Ct. 130, 96 L.Ed. 100 (1951); Schneiderman, 320 U.S. at 122-23, 63 S.Ct. 1333; Gorbach v. Reno, 219 F.3d 1087, 1092-98 (9th Cir. 2000) (en banc). In other words, although citizenship may be administratively bestowed, it can only be revoked by a federal court. If the government concludes that a naturalized citizen is not legally entitled to citizenship, it may seek to effect denaturalization either through federal criminal prosecution or a civil action in federal court. If an individual knowingly procures naturalization or a certificate or evidence of citizenship to which the puta tive citizen is not entitled, the government may criminally prosecute her under 18 U.S.C. § 1425. Once a person is convicted under section 1425, the federal court in which the conviction occurred shall on that ground revoke the defendant’s citizenship. See 8 U.S.C. § 1451(e); see Maslenjak v. United States, 582 U.S. -, 137 S.Ct. 1918, 1920, 198 L.Ed.2d 460 (2017). If proof of the requisite mens rea is lacking or some other factor counsels against criminal prosecution, the government alternatively may denaturalize a person by obtaining a civil denaturalization order in federal court pursuant to 8 U.S.C. § 1451. “The exclusive [noncriminal] process for challenging the validity of the grant of a naturalization petition is through a revocation of naturalization proceeding pursuant to 8 U.S.C. § 1451.” United States v. Clarke, 628 F.Supp.2d 15, 23 (D.D.C. 2009), aff'd sub nom. United States v. Straker, 800 F.3d 570. Whenever any person procures a naturalization order or certificate illegally, or by concealment of a material fact or willful misrepresentation, section 1451 authorizes the government to sue “for the purpose of revoking and setting aside the order admitting such person to citizenship and cancelling the certificate of naturalization.” 8 U.S.C. § 1451(a); see Zucca, 351 U.S. at 91, 76 S.Ct. 671; Bindczyck, 342 U.S. at 83, 72 S.Ct. 130. In that proceeding, the govern ment “carries a" }, { "docid": "5232150", "title": "", "text": "582 U.S. -, 137 S.Ct. 1918, 1920, 198 L.Ed.2d 460 (2017). If proof of the requisite mens rea is lacking or some other factor counsels against criminal prosecution, the government alternatively may denaturalize a person by obtaining a civil denaturalization order in federal court pursuant to 8 U.S.C. § 1451. “The exclusive [noncriminal] process for challenging the validity of the grant of a naturalization petition is through a revocation of naturalization proceeding pursuant to 8 U.S.C. § 1451.” United States v. Clarke, 628 F.Supp.2d 15, 23 (D.D.C. 2009), aff'd sub nom. United States v. Straker, 800 F.3d 570. Whenever any person procures a naturalization order or certificate illegally, or by concealment of a material fact or willful misrepresentation, section 1451 authorizes the government to sue “for the purpose of revoking and setting aside the order admitting such person to citizenship and cancelling the certificate of naturalization.” 8 U.S.C. § 1451(a); see Zucca, 351 U.S. at 91, 76 S.Ct. 671; Bindczyck, 342 U.S. at 83, 72 S.Ct. 130. In that proceeding, the govern ment “carries a heavy burden of proof.” Costello v. United States, 365 U.S. 265, 269, 81 S.Ct. 534, 5 L.Ed.2d 551 (1961). “[I]n view of the grave consequences to the citizen, naturalization decrees are not lightly to be set aside—the evidence must indeed be ‘clear, unequivocal, and convincing’ and not leave ‘the issue in doubt.’ ” Id. (quoting Schneiderman, 320 U.S. at 125, 158, 63 S.Ct. 1333; Baumgartner v. United States, 322 U.S. 665, 670, 64 S.Ct. 1240, 88 L.Ed. 1525 (1944)) (alteration omitted); see Nowak v. United States, 356 U.S. 660, 663, 78 S.Ct. 963, 2 L.Ed.2d 1048 (1958). Here, however, the government has not gone to court to seek denaturalization of any of the plaintiffs in this case; it has administratively canceled their certificates of naturalization and revoked their passports. The Attorney General has statutory authority, without a court order, to “cancel any certificate of citizenship” where it appears “to the Attorney General’s satisfaction” that the document was illegally or fraudulently obtained. 8 U.S.C. § 1453. The Department of Homeland Security has promulgated regulations governing that" }, { "docid": "13817008", "title": "", "text": "278 U.S. 17, 22, 49 S.Ct. 15, 73 L.Ed. 156. In United States v. Ginsberg, 243 U.S. 472, 475, 37 S.Ct. 422, 425, 61 L.Ed. 53, it was said: “No alien has the slightest right to naturalization unless all statutory requirements are complied with; and every certificate of citizenship must be treated as granted upon condition that the government may challenge it, as provided in section 15, and demand its cancelation unless issued in accordance with such requirements. If procured when prescribed qualifications have no existence in fact, it is illegally procured; a manifest mistake by the judge cannot supply these nor render their existence nonessential.” Intentionally false statements in the proceedings by the alien and also concealment of material facts at the hearing have generally been held sufficient basis for cancellation of the- certificate. United States v. Etheridge, D.C., 41 F.2d 762; United States v. Marcus, D.C., 1 F.Supp. 29; United States v. De Francis, 60 App. D.C. 207, 50 F.2d 497; United States v. Albertini, D.C., 206 F. 133. But the grounds for cancellation as provided in the statute (8 U.S.C.A. § 405) include illegal procurement as well as fraud; and it has been held in many cases that certificates should be cancelled, where the alien in fact lacked one or more of the essential requirements for naturalization, even though he was not guilty of fraud in procuring the certificate of citizenship; or where there is some essential defect in the naturalization procedure; for instances, where the final hearing was not held in open court, but in the judge’s chambers, United States v. Ginsberg, 243 U.S. 472, 37 S.Ct. 422, 61 L.Ed. 853; where the certificate of arrival was not filed with the petition, United States v. Ness, 245 U.S. 319, 38 S.Ct. 118, 62 L.Ed. 321; Maney v. United States, 278 U.S. 17, 49 S.Ct. 15, 73 L.Ed. 156; where the alien was ineligible for citizenship under the law by reason of racial status, or other lack of statutory qualifications, United States v. Khan, D.C., 1 F.2d 1006; United States v. Plaistow, D.C., 189 F. 1006; United" }, { "docid": "21507314", "title": "", "text": "may reside at the time of bringing the suit, for the purpose of setting aside and canceling the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured. * * *” This action is brought on the ground that the certificate of citizenship was illegally procured by the respondent. Subdivision fourth of section 4 of the Naturalization Law, supra, as amended by the Act of May 9,1918, 40 Stat. 542 (Comp. St. 1918, Comp. St. Ann. Snpp. 1919, § 4352), provides as follows: “It shall be made to appear to the satisfaction of the court admitting any alien to citizenship that immediately preceding the date of his application he has resided continuously within the United States five years at least, and within the state or territory where such court is at the time hold one year at least, and that during that time he has behaved as a man of good moral character. * * *” From this section it appears that proof of good moral character is one of the necessary qualifications for admission to citizenship. Respondent contends that, the eourt before whom the petition was heard having overruled the objection of the representative of the Department of Labor, this constituted the exercise of judicial discretion, with which this court cannot interfere. This, however, does not seem to he the law, because it has been held in many cases in the United States courts that, whore a certificate of naturalization is illegally granted by a state court, a District Court of the United States for the district within which the naturalized citizen resides has jurisdiction at the instance of the United States to cancel and vacate it. U. S. v. Nisbet (D. C.) 168 F. 1005; U. S. v. Mansour (D. C.) 170 F. 671; U. S. v. Simon (C. C.) 170 F. 680; U. S. v Meyer (D. C.) 170 F. 983; U. S. v. Spohrer (G. C.) 175 F. 440; U. S. v. Aakervik (D. C.) 180 F. 137; U. S. v. Nopoulos (D. C.) 225 F." }, { "docid": "13958538", "title": "", "text": "a prison guard at Treblinka. Also, defendant sought to establish that his service as a guard at Treblinka and elsewhere was performed involuntarily while he was himself a prisoner of war. BURDEN OF PROOF Because of the importance of a loss of citizenship to the individual, a denaturalization proceeding is a most sensitive trial. Thus, the burden of proof in denaturalization cases has been clearly stated by the Supreme Court in Nowak v. United States, 356 U.S. 660, 663, 78 S.Ct. 955, 957, 2 L.Ed.2d 1048 (1958), as follows: Where citizenship is at stake the Government carries the heavy burden of proving its case by “ ‘clear, unequivocal, and convincing’ evidence which does not leave ‘the issue in doubt’ * * Schneiderman v. United States, 320 U.S. 118,158, 63 S.Ct. 1333,1352, 87 L.Ed. 1796. “Especially is this so when the attack is made long after the time when the certificate of citizenship was granted and the citizen has meanwhile met his obligations and has committed no act of lawlessness.” Id., 320 U.S. at pages 122-123, 63 S.Ct. at page 1335. As the Supreme Court has stated: [Denaturalization cases] are extremely serious problems. They involve not only fundamental principles of our political system designed for the protection of minorities and majorities alike. They also involve tremendously high stakes for the individual. For denaturalization, like deportation, may result in the loss “of all that makes life worth living.” (citation omitted) Knauer v. United States, 328 U.S. 654, 659, 66 S.Ct. 1304, 1307, 90 L.Ed. 1500 (1947). PUBLISHED POLICY CONCERNING DENATURALIZATION CASES A failure to follow the published policy of the Department of Justice does not bar the bringing of the suit. United States v. Nelligan, 573 F.2d 251 (5th Cir. 1978). However, it is interesting to observe the policy of the Department of Justice with respect to bringing denaturalization cases: In the opinion of the department, as a general rule, a good cause is not shown for the institution of proceedings to cancel certificates of naturalization alleged to have been fraudulently or illegally procured unless some substantial results are to be achieved" } ]

[ { "docid": "22110328", "title": "", "text": "a duty only on the fiduciary that causes the plan to engage in the transaction. See § 406(a)(1), 29 U. S. C. § 1106(a)(1) (\"A fiduciary with respect to a plan shall not cause the plan to engage in a transaction, if he knows or should know that such transaction . . .” (emphasis added)). We reject, however, the Seventh Circuit’s and Salomon’s conclusion that, absent a substantive provision of ERISA expressly imposing a duty upon a nonfiduciary party in interest, the nonfidueiary party may not be held liable under § 502(a)(3), one of ERISA’s remedial provisions. Petitioners contend, and we agree, that § 502(a)(3) itself imposes certain duties, and therefore that liability under that provision does not depend on whether ERISA’s substantive provisions impose a specific duty on the party being sued. Section 502 provides: “(a) . . . \"A civil action may be brought— “(3) by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of [ERISA Title I] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of this title or the terms of the plan.” 29 U. S. C. § 1132(a)(3). This language, to be sure, “does not . . . authorize ‘appropriate equitable relief’ at large, but only ‘appropriate equitable relief’ for the purpose of ‘redressing any] violations or . . . enforcing] any provisions’ of ERISA or an ERISA plan.” Peacock v. Thomas, 516 U. S. 349, 353 (1996) (quoting Mertens, supra, at 253 (emphasis and alterations in original)). But § 502(a)(3) admits of no limit (aside from the “appropriate equitable relief” caveat, which we address infra) on the universe of possible defendants. Indeed, § 502(a)(3) makes no mention at all of which parties may be proper defendants — the focus, instead, is on redressing the “act or practice which violates any provision of [ERISA Title I].” 29 U. S. C. § 1132(a)(3) (emphasis added). Other provisions of ERISA, by contrast, do expressly address who may be a defendant. See, e.g.," } ]

[ { "docid": "5630062", "title": "", "text": "serviced the plan. Garren sued the insurance company, arguing his employment benefit plan wrongfully denied his son’s claim for benefits. The court dismissed the claim because the insurance company was not a plan administrator. Garren, 114 F.3d at 187(\"The evidence is clear that [plaintiff's employer] is the proper party defendant, not [the insurance company].”). . For this reason, we disagree with the dissent’s contention that we should only resolve this case through an en banc proceeding. . The dissent proposes a new test for suits under § 1132(a)(1)(B) whereby suits for benefits could be brought against a party that is neither the plan itself nor the plan administrator, but that makes “the discretionary decisions as to whether benefits were owed.” Dissent at 17345. The dissent cites no authority for this proposition. It is contrary to the cases discussed in text in this and other circuits that limit § 1132(a)(1)(B) suits to plans or plan administrators, and — significantly — it seems to confuse or conflate a § 1132(a)(1)(B) suit with a § 1132(a)(3) suit for breach of fiduciary duty, which is not the claim Everhart is making against Allmerica. See Gelardi, 761 F.2d at 1325(“ERISA defines a fiduciary of a Plan as anyone who 'exercises any discretionary authority or discretionary control respecting management of such plan or ... has any discretionary authority or discretionary responsibility in the administration of such plan' \") (quoting 29 U.S.C. § 1002(21)(A)); Gibson, 915 F.2d at 417 (noting that § 1132(a)(3) \"allows equitable relief against both fiduciaries and nonfiduciaries”). Some of the Supreme Court's rationale in Harris may raise questions about Gelardi's continuing vitality. See Harris, 530 U.S. at 246, 120 S.Ct. 2180 (explaining that § 1132(a)(3) \"admits of no limit ... on the universe of possible defendants”). But the Court also observed that \"ERISA’s comprehensive and reticulated scheme warrants a cautious approach to inferring remedies not expressly authorized by the text,” id. at 247, 120 S.Ct. 2180 (quotation marks omitted), and ultimately turned to the language of § 1132(1) as explicitly authorizing suits for breach of fiduciary duty against a fiduciary or \"other person.”" }, { "docid": "23032330", "title": "", "text": "DAVID R. THOMPSON, Circuit Judge: OVERVIEW Petitioner Steffany Tremain (“Tremain”) brought suit against Bell Industries, Inc. (“Bell Industries”); Bell Industries, Inc. Long Term Disability Plan (“the Bell Plan”); and Metropolitan Life Insurance Company (“MetLife”) (collectively, “the Defendants”). Tremain claimed the Defendants wrongfully terminated her long-term disability payments under the Employee Retirement Income Security Act of 1974 (“ERISA”), 29 U.S.C. § 1001, et seq. In addition, Tremain asserted claims for breach of fiduciary duty under 29 U.S.C. §§ 1105, 1109(a) and 1132(a)(2) and claims for current and retroactive benefits under 29 U.S.C. § 1132(a)(1)(B). The district court granted the Defendants’ motion for summary judgment as to all of Tremairis claims. Tremain appeals the district court’s judgment only as to her claims under 29 U.S.C. § 1132(a)(1)(B). Tremain contends the district court erred in applying the arbitrary and capricious standard to review MetLife’s decision to terminate her long-term disability benefits. Tremain also contends the district court erred in refusing to consider evidence outside the administrative record. We have jurisdiction under 28 U.S.C. § 1291. We reverse the district court’s summary judgment, and remand for a trial in which the district court is directed to review de novo the termination of Tremain's benefits under the Bell Plan, and determine the amount of any unpaid benefits that might be due to her. BACKGROUND Tremain was a General Sales Manager for Bell Industries. As of March 1, 1990, chronic and severe pain caused her to become unable to work. She filed a claim for disability benefits with MetLife, the insurer and claims administrator of the Bell Plan. On August 28, 1990, she began receiving benefit payments in the amount of $4,250 per month. Over the next four- and-one-half years, Tremain remained under the care of several treating physicians, each of whom confirmed her ongoing disability. In January 1995, MetLife requested a medical case management review of Tre-, main’s medical records by Susan Yager, R.N., a Rehabilitation Nurse and Medical Management Specialist. Based on Ms. Yager’s recommendations, Tremain entered the Stanford University In-Patient Pain Management and Chemical Dependency Program. After Tremairis discharge from the Stanford Pain" }, { "docid": "17206035", "title": "", "text": "Acosta cannot assert his claim against the Plan itself because the Plan is not a fiduciary within the meaning of section 404(a)(1). Appellees therefore urge this Court to affirm the district court’s grant of summary judgment for the Plan on the ground that a plan covered by ERISA cannot be sued as an entity for breach of fiduciary duty. ERISA permits suits for breach of fiduciary duty only against persons who act as a fiduciary with respect to a plan or trust covered by ERISA. See Batchelor v. Oak Hill Medical Group, 870 F.2d 1446, 1448 (9th Cir.1989); Nieto v. Ecker, 845 F.2d 868, 871-73 (9th Cir.1988). Section 3(21) of ERISA defines a fiduciary as anyone who: (i) ... 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) ... 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) ... has any discretionary authority or discretionary responsibility in the administration of such plan. 29 U.S.C. § 1002(21)(A) (1988). This language makes clear that a person’s actions, not the official designation of his role, determine whether he enjoys fiduciary status. A plan covered by ERISA cannot, as an entity, act as a fiduciary with respect to its own assets. Therefore, a plan itself cannot be sued for breach of fiduciary duty. This rule, however, does not inexorably lead to the conclusion that a plan cannot be properly named in a suit alleging breach of fiduciary duty. To the extent that a plaintiff seeks “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,” the plan may be named as a defendant. 29 U.S.C. §§ 1132(a)(1)(B), 1132(d) (1988). Thus, even though Acosta cannot sue the SoCal Gas Plan for breach of fiduciary duty per se," }, { "docid": "19260305", "title": "", "text": "no further appeals are available in reference to this claim.” (See id., MetLife’s September 23,1997 Letter to Allen Tippy) 29. Dr. Bell wrote-his final “To Whom It May Concern” letter on October 12, 1999, stating therein that he initially examined Archible on June 6, 1995 and became the plaintiffs primary care physician in 1996. (Doc. 36, Exhibit 27) CONCLUSIONS OF LAW 1. Plaintiff filed suit in this Court on April 7, 1999, alleging a violation of the Employee Retirement Income Security Act (“ERISA”), 29 U.S.C. § 1001, et seq. (Doc. 1) More specifically, the plaintiff alleges that MetLife violated § 1132(a)(1)(B) by wrongfully terminating his long-term disability benefits under the Group Long Term and Partial Disability Insurance plan issued to his employer, Bell Atlantic. (See id.) 2. “Although it is a comprehensive and reticulated statute, ERISA does not set out the appropriate standard of review for actions under § 1132(a)(1)(B) challenging benefit eligibility determinations.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 108-109, 109 S.Ct. 948, 953, 103 L.Ed.2d 80 (1989) (internal quotation marks and citations omitted). Therefore, the Supreme Court in Firestone articulated the appropriate standard of review in § 1132(a)(1)(B) actions challenging denials of benefits based on plan interpretations. Id. at 115, 109 S.Ct. at 956-59. “[W]e hold that a denial of benefits challenged under § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Id. 3. The undersigned has previously determined that the de novo standard of review is applicable in this case. (Doc. 32) Under this standard of review, the undersigned now finds that MetLife’s termination of plaintiffs long-term disability benefits is due to be affirmed. 4. Under the Bell Atlantic plan, there are two categories of total disability. Under the first category, the plan provides that during the first twenty-four months, after a six month qualifying period, an employee is totally disabled if he is “unable to perform the normal duties of [his] regular occupation for any employer" }, { "docid": "15313528", "title": "", "text": "Partial Concurrence and Partial Dissent by Judge BYBEE OPINION CHEN, District Judge: Plaintiff-Appellant Daniel G. Demer filed suit, pursuant to the Employee Retirement Income Security Act of 1974 (“ERISA”), against Defendants-Appellees IBM Corporation LTD Plan (the “Plan”) and Metropolitan Life Insurance Company (“MetLife”). Mr. Demer claimed that Met-Life, the claim administrator and insurer for the Plan, improperly denied his claim for long-term disability (“LTD”) benefits. See 29 U.S.C. § 1132(a)(1)(B) (providing that “[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”). The district court denied Mr. Dem-er’s motion for summary judgment, granted Defendants’ cross-motion, and entered judgment in favor of Defendants. We reverse the district court’s entry of judgment in Defendants’ favor and remand to the district court with instructions to remand this ease to MetLife to re-evaluate the merits of Mr. Demer’s LTD claim. I. A. Mr. Demer’s Claim for LTD Benefits Mr. Demer was an employee of IBM Corporation and a participant in the Plan. MetLife is the claim administrator for and insurer of the Plan. The parties agree that the Plan gives MetLife, as the administrator, discretionary authority to interpret the Plan and determine benefits eligibility. Where, as here, an ERISA plan confers discretionary authority on the plan administrator as a matter of contractual agreement, then the standard of review is abuse of discretion rather than de novo. See Tapley v. Locals 302 & 612 of the Int’l Union of Operating Eng’rs-Employers Constr. Indus. Ret. Plan, 728 F.3d 1134, 1139 (9th Cir. 2013) (“Where an ERISA Plan grants ‘discretionary authority to determine eligibility for benefits or to construe the terms of the plan,’ ‘a plan administrator’s interpretation of a plan’ is reviewed for abuse of discretion. We review the district court’s application of this standard de novo.”); Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir. 2006) (en banc) (“[I]f the plan" }, { "docid": "23365637", "title": "", "text": ". 102 F.3d 1368 (5th Cir. 1996). . All parties agree that the Plan’s language unambiguously provides for a right of reimbursement and subrogation. As neither party seeks a construction of the Plan's terms, we need not engage in application of the deference principles articulated by the Supreme Court in Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). . See St. Paul Mercury Ins. Co. v. Williamson, 224 F.3d 425, 440 n. 8 (5th Cir.2000). . Benton v. United States, 960 F.2d 19, 21 (5th Cir.1992); see also St. Paul Mercury Ins. Co., 224 F.3d at 440 n. 8 (''[r]he central issue [in reviewing a motion to dismiss] is whether, in the light most favorable to the plaintiff, the complaint states a valid claim for relief.”). . See Bauhaus USA, Inc. v. Copeland, 292 F.3d 439, 442 (5th Cir.2002) (\"ERISA grants the federal courts 'exclusive jurisdiction of civil actions under this title brought by ... [a] fiduciary.’ ”). The parties agree that the Plan is governed by ERISA and that the Plan is a \"fiduciary” under ERISA. . 29 U.S.C. § 1132(a)(3). . For purposes of this case, a person is a plan fiduciary to the extent that he exercises discretionary authority or control over the management or administration of the plan or its assets, or renders investment advice to the plan for compensation. See 29 U.S.C. § 1002(21)(A). The parties agree that the law firm is not a plan fiduciary. . 530 U.S. 238, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000). . See id. at 241, 120 S.Ct. 2180. ERISA both imposes a general duty of loyalty on plan fiduciaries, § 406(a); 29 U.S.C. § 1104, and, \"categorically bar[s] certain transactions deemed likely to injure the pension plan.' ” § 406(a)(1); 29 U.S.C. § 1106. . Id. at 244-246, 120 S.Ct. 2180. . For example, the following ERISA provisions explicitly delineate the entities subject to suit: (1) \"§ 409(a), 29 U.S.C. § 1109(a) (‘Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities," }, { "docid": "22593827", "title": "", "text": "MetLife wrote that, taking into account available accommodations, the plaintiff had not established an inability to perform substantially all the duties of his job. After exhausting his administrative remedies, the plaintiff filed suit in the United States District Court for the District of Massachusetts. He asserted that MetLife had violated ERISA when it unreasonably denied his claim. In due season, the parties cross-moved for summary judgment. The district court granted the defendants’ motion and denied the plaintiffs counter part motion. Leahy v. Raytheon Co., No. 00-CV-12093, slip op. (D.Mass. Jan. 29, 2002) (unpublished). The court noted that the Plan vested broad discretionary authority in MetLife to determine eligibility for benefits and declared that while some medical evidence supported the plaintiffs claim of disability, other evidence supported MetLife’s denial of benefits. On that scumbled record, the court ruled that MetLife’s determination was neither arbitrary nor capricious. This timely appeal followed. II. Standard of Review This denial-of-benefits claim arises under 29 U.S.C. § 1132(a)(1)(B). The Supreme Court has provided the ground rules for determining the proper standard of review. In Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), the Court stated that when a denial of benefits is challenged under ERISA § 1132(a)(1)(B), the standard of review depends largely upon whether “the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone, 489 U.S. at 115, 109 S.Ct. 948. If so, “Firestone and its progeny mandate a deferential ‘arbitrary and capricious’ standard of review.” Recupero v. New Engl. Tel. & Tel. Co., 118 F.3d 820, 827 (1st Cir.1997) (quoting Firestone, 489 U.S. at 115, 109 S.Ct. 948). The threshold question, then, is whether the provisions of the employee benefit plan under which remediation is sought reflect a clear grant of discretionary authority to determine eligibility for benefits. Terry v. Bayer Corp., 145 F.3d 28, 37 (1st Cir.1998); Rodriguez-Abreu v. Chase Manhattan Bank, 986 F.2d 580, 583 (1st Cir.1993). We turn, therefore, to the text of the Plan. The Plan documents" }, { "docid": "20373009", "title": "", "text": "nonfiduciaries like himself. DuPree further contends that, even if ERISA permits nonfiduciaries to be held liable, he was an “innocent recipient” of Plan funds and therefore should not be required to disgorge the funds he received. We reject both arguments. 1. Nonfiduciary liability Under 29 U.S.C. §§ 1109(a) and 1132(a)(2), ERISA beneficiaries may bring an action against fiduciaries who breach their duties to the plan, and may recover both damages and equitable relief from them. In this case, the district court determined that DuPree was not a fiduciary of the Plan and, consequently, that he could not be held liable under sections 1109(a) and 1132(a)(2). However, it went on to conclude that DuPree was subject to liability under 29 U.S.C. § 1132(a)(3), which permits ERISA beneficiaries to bring actions against nonfiduciaries for “appropriate equitable relief.” See Mertens v. Hewitt Associates, 508 U.S. 248, -, 113 S.Ct. 2063, 2071-72, 124 L.Ed.2d 161 (1993). Included in the definition of equitable relief is restitution of ill-gotten plan assets, but not “all direct and consequential damages suffered by the plan.” Id. at ——, 113 S.Ct. at 2072; see also Concha v. London, 62 F.3d at 1504. Our'decision in Nieto v. Ecker, 845 F.2d 868, 873 (9th Cir.1988) allows actions for equitable relief against nonfiduciaries who: (1) are “parties in interest” with respect to the plan, as that term is defined in 29 U.S.C. § 1002(14); and (2) engage in transactions prohibited by 29 U.S.C. § 1106(a). Included in the definition of parties in interest' are “employees.” 29 U.S.C. § 1002(14)(H). Because DuPree was an employee of the Company, the district court found that he was a party in interest, and DuPree does not chal lenge this finding on appeal. Among the transactions prohibited by 29 U.S.C. § 1106(a) are the lending of money between the plan and a party in interest, 29 U.S.C. § 1106(a)(1)(B), and the transfer of plan assets to a party in interest. 29 U.S.C. § 1106(a)(1)(D). The district court concluded that, whether the checks to DuPree are considered loans or gifts, he had engaged in prohibited transactions by receiving Plan" }, { "docid": "23365638", "title": "", "text": "by ERISA and that the Plan is a \"fiduciary” under ERISA. . 29 U.S.C. § 1132(a)(3). . For purposes of this case, a person is a plan fiduciary to the extent that he exercises discretionary authority or control over the management or administration of the plan or its assets, or renders investment advice to the plan for compensation. See 29 U.S.C. § 1002(21)(A). The parties agree that the law firm is not a plan fiduciary. . 530 U.S. 238, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000). . See id. at 241, 120 S.Ct. 2180. ERISA both imposes a general duty of loyalty on plan fiduciaries, § 406(a); 29 U.S.C. § 1104, and, \"categorically bar[s] certain transactions deemed likely to injure the pension plan.' ” § 406(a)(1); 29 U.S.C. § 1106. . Id. at 244-246, 120 S.Ct. 2180. . For example, the following ERISA provisions explicitly delineate the entities subject to suit: (1) \"§ 409(a), 29 U.S.C. § 1109(a) (‘Any person who is a fiduciary with respect to a plan who breaches any of the responsibilities, obligations, or duties imposed upon fiduciaries by this subchapter shall be personally liable’);” and (2) \"§ 502(1), 20 U.S.C. § 1132(l)(authorizing imposition of civil penalties only against a ‘fiduciary’ who violates part 4 of Title I or 'any other person' who knowingly participates in such a violation).” Id. at 246-47, 120 S.Ct. 2180. . Id. at 246, 120 S.Ct. 2180. . Id. at 245, 120 S.Ct. 2180. . See id. at 242-43, 120 S.Ct. 2180. . Id. at 243, 120 S.Ct. 2180. . See id. at 242, 120 S.Ct. 2180. . Id. at 243, 120 S.Ct. 2180. . Id. . Id. . See id. at 244-45, 120 S.Ct. 2180. . The term \"'party in interest’... encompasses those entities that a fiduciary might be inclined to favor at the expense of the plan's beneficiaries.” Harris Trust, 530 U.S. at 242, 120 S.Ct. 2180. Finding nothing in the record that would suggest that the law firm is an entity likely to be favored by the plan’s fiduciaries, we will assume that the law firm is not a" }, { "docid": "21229086", "title": "", "text": "concentration, memory and fund of knowledge orientation.” (AR 331) From his review of her file, Dr. Givens concluded that Plaintiff “does not have significant impairment from a psychiatric condition” that would preclude her from “fulltime work” at her own occupation or another occupation. (Id.) On October 11, 2004, MetLife denied Plaintiffs appeal. (AR 321-28) MetLife informed Plaintiff that its decision to deny Plaintiffs appeal was based on its conclusion that the “medical information on file does not support a condition(s) of such severity that would preclude [Plaintiff] from working beyond February 29, 2004.” (AR 328) Several months later, on April 1, 2005, Plaintiff filed her complaint with this Court seeking review of MetLife’s cancellation of her LTD benefits. Conclusions Of Law I. Jurisdiction And Venue This action involves a claim for long term disability benefits under an employee welfare benefit plan regulated by ERISA. As such, the Court has original jurisdiction over this matter under 28 U.S.C. § 1331 and 29 U.S.C. § 1132(e). See, e.g., Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 63, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987); Parrino v. FHP, Inc., 146 F.3d 699, 703-04 (9th Cir.1998). Venue in the United States District Court for the Central District of California is invoked pursuant to 29 U.S.C. § 1132(e)(2). The parties do not dispute the facts requisite to federal jurisdiction and venue. II. Standard Of Review A “denial of benefits challenged under 29 U.S.C. § 1132(a)(1)(B) is to be reviewed under a de novo standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.” Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Where the plan vests such discretionary authority in the administrator or fiduciary, the Court reviews the denial of benefits under the plan for an abuse of discretion. Id. However, in order for the abuse of discretion standard to apply, the Plan must unambiguously grant discretion to the administrator or fiduciary. Kearney v. Standard Ins. Co., 175 F.3d 1084," }, { "docid": "155609", "title": "", "text": "brought against the plan (because the plan normally owes the benefits), where the plaintiff alleges that she is a participant or beneficiary under an insurance-based ERISA plan and the insurance company decides all eligibility questions and owes the benefits, the insurer is a proper defendant in a suit for benefits due under § 1132(a)(1)(B). Our conclusion accords with that of the en banc Ninth Circuit, which has addressed this specific question, see Cyr, 642 F.3d at 1207, as well as the general approach adopted by other circuits in benefits claims against nonplan defendants, see Lifecare Mgmt. Servs. LLC v. Ins. Mgmt. Adm’rs Inc., 703 F.3d 835, 843-45 (5th Cir.2013) (collecting cases). It is also consistent with the Supreme Court’s conclusion in Harris Trust that nonplan defendants are subject to suit under § 1132(a)(3). See 530 U.S. at 254, 120 S.Ct. 2180; see also Cyr, 642 F.3d at 1206 (“We see no reason to read a limitation into § 1132(a)(1)(B) that the Supreme Court did not perceive in § 1132(a)(3).”). B. Section 1132(a)(3) Claim for Breach of Fiduciary Duty The district court also dismissed the claim under § 1132(a)(3) for breach of fiduciary duty because the conduct alleged in the complaint—imposing copayment requirements for chiropractic services—is not fiduciary in nature. This ruling was sound. “In every case charging breach of ERISA fiduciary duty, ... the threshold question is ... whether [the defendant] was acting as a fiduciary (that is, was performing a fiduciary function) when taking the action subject to complaint.” Pegram, 530 U.S. at 226, 120 S.Ct. 2143. ERISA carefully defines fiduciary status. “[N]ot only the persons named as fiduciaries by a benefit plan, see 29 U.S.C. § 1102(a), but also anyone else who exercises discretionary control or authority over the plan’s management, administration, or assets, see id. § 1002(21)(A), is an ERISA ‘fiduciary.’ ” Mertens v. Hewitt Assocs., 508 U.S. 248, 251, 113 S.Ct. 2063, 124 L.Ed.2d 161 (1993). More specifically, “a person is a fiduciary with respect to a plan to the extent ... he exercises any discretionary authority or discretionary control respecting management of such plan or" }, { "docid": "18760933", "title": "", "text": "asserted to arise under ERISA with jurisdiction lying specifically under Section 502, 29 U.S.C. § 1132, which it claimed “provides for exclusive jurisdiction in the United States District Court over actions by fiduciaries under the Act.” Title 29 U.S.C. § 1132(e)(1) provides for exclusive federal jurisdiction of actions brought by the Secretary or by a “participant, beneficiary, or fiduciary,” except for actions under § 1132(a)(1)(B). None of the parties to this action are “participants,” 29 U.S.C. § 1002(7), or “beneficiaries,” 29 U.S.C. § 1002(8). This is also not an action under § 1132(a)(1)(B), because no participant or beneficiary is seeking to “recover benefits” nor to obtain information from an administrator. Under § 1132(a)(3) a “fiduciary” may bring an action “to enjoin” a violation of ERISA or “the terms of the plan,” 29 U.S.C. § 1132(a)(3)(A), or “to obtain other appropriate equitable relief (i) to redress such violations (ii) or to enforce” ERISA or plan provisions, 29 U.S.C. § 1132(a)(3)(B). If the Plan, or its administrators acting on behalf of the Plan, may be deemed to be a “fiduciary” within the meaning of the Act, the type of action represented by the Plan’s counterclaim may be brought in the district court under § 1132(e)(1). This action was, in effect, commenced in the district court to attempt to enforce what the administrators of the Plan felt to be the requirements of ERISA and the agreement of the parties formulated in the Plan itself. “An employee benefit plan may sue or be sued under this sub-chapter as an entity.” § 1132(d)(1). The Plan is administered generally by its “Administrative Board,” comprised of the administrators who have full power and authority to carry out all its provisions. (See Article VIII, Joint Appendix, Vol. II, p. 12). The Plan, as the party before the court, necessarily includes those who must act for the Plan to administer it and to effectuate its policies. Title 29 U.S.C. § 1002(21)(A) deals with the meaning of a “fiduciary” under the Act. A person is deemed a fiduciary under that section “to the extent (i) he exercises any discretionary authority" }, { "docid": "5630063", "title": "", "text": "breach of fiduciary duty, which is not the claim Everhart is making against Allmerica. See Gelardi, 761 F.2d at 1325(“ERISA defines a fiduciary of a Plan as anyone who 'exercises any discretionary authority or discretionary control respecting management of such plan or ... has any discretionary authority or discretionary responsibility in the administration of such plan' \") (quoting 29 U.S.C. § 1002(21)(A)); Gibson, 915 F.2d at 417 (noting that § 1132(a)(3) \"allows equitable relief against both fiduciaries and nonfiduciaries”). Some of the Supreme Court's rationale in Harris may raise questions about Gelardi's continuing vitality. See Harris, 530 U.S. at 246, 120 S.Ct. 2180 (explaining that § 1132(a)(3) \"admits of no limit ... on the universe of possible defendants”). But the Court also observed that \"ERISA’s comprehensive and reticulated scheme warrants a cautious approach to inferring remedies not expressly authorized by the text,” id. at 247, 120 S.Ct. 2180 (quotation marks omitted), and ultimately turned to the language of § 1132(1) as explicitly authorizing suits for breach of fiduciary duty against a fiduciary or \"other person.” Id. at 247-48. No similar express authorization to reach third parties exists for § 1132(a)(1)(B). Accordingly, Harris reinforces our view that the dissent's test belongs under § 1132(a)(3), not § 1132(a)(1)(B). . The district court in this case distinguished Forsyth on the ground that Humana, the insurer, was a fiduciary of the plan. However, Everhart correctly notes that fiduciary status is an improper basis on which to distinguish Forsyth because the district court there explicitly rejected plaintiffs’ attempt to bring a claim for violation of fiduciary duty: \"[T]he cause of action provided by ERISA to compensate the [plaintiffs] for the questionable conduct of Humana Insurance is a claim for benefits pursuant to § 1132(a)(1)(B) and not a claim for breach of fiduciary duty under § 1109 or § 1132(a)(3).” Forsyth v. Humana, Inc., 827 F.Supp. 1498, 1506 (D. Nev.1993). This court specifically affirmed this portion of the district court's ruling. Forsyth, 114 F.3d at 147,5. . That Humana was understood to be the plan administrator is indicated by Forsyth's discussion of Varity Corp. v. Howe," }, { "docid": "22181110", "title": "", "text": "Met-Life’s administrative appeals process. Saffon sued the Plan under 29 U.S.C. § 1132(a), seeking payment of withheld benefits, attorney’s fees and a declaration that she is disabled. After a bench trial on the administrative record, the district court concluded that the Plan hadn’t abused its discretion and denied Saffon any relief. Standard of Review 1. We review benefits denials de novo “unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits;” if the plan does grant such discretionary authority, we review the administrator’s decision for abuse of discretion. Firestone Tire & Rubber Co. v. Bruch, 489 U.S. 101, 115, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989). Here, the Plan’s Summary Plan Description states: In carrying out their respective responsibilities under the Plan, the Plan administrator and other Plan fiduciaries shall have discretionary authority to interpret the terms of the Plan and to determine eligibility for and entitlement to Plan benefits in accordance with the terms of the Plan. Saffon argues that we must review MetLife’s decision de novo because it is unclear whether the Summary Plan Description’s discretionary clause refers to MetLife. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1090 (9th Cir.1999) (en banc) (we defer only if the grant of discretionary authority is “unambiguous[ ]”). Saffon sees an ambiguity in the fact that the Summary Plan Description doesn’t refer to MetLife by name; instead, it grants discretionary authority to “the Plan administrator [Wells Fargo] and other Plan fiduciaries.” But it’s perfectly clear that MetLife is included in this grant of discretionary authority because it is one of the “other Plan fiduciaries” mentioned there. A “fiduciary” is an entity with “any discretionary authority” in the “administration of’ an ERISA plan. 29 U.S.C. § 1002(21)(A). See Aetna Health Inc. v. Davila, 542 U.S. 200, 220, 124 S.Ct. 2488, 159 L.Ed.2d 312 (2004) (“When administering employee benefit plans, HMOs must make discretionary decisions regarding eligibility for plan benefits, and, in this regard, must be treated as plan fiduciaries.”). MetLife’s Certificate of Insurance provides that “MetLife in its discretion has authority to interpret the terms, conditions," }, { "docid": "18760934", "title": "", "text": "be a “fiduciary” within the meaning of the Act, the type of action represented by the Plan’s counterclaim may be brought in the district court under § 1132(e)(1). This action was, in effect, commenced in the district court to attempt to enforce what the administrators of the Plan felt to be the requirements of ERISA and the agreement of the parties formulated in the Plan itself. “An employee benefit plan may sue or be sued under this sub-chapter as an entity.” § 1132(d)(1). The Plan is administered generally by its “Administrative Board,” comprised of the administrators who have full power and authority to carry out all its provisions. (See Article VIII, Joint Appendix, Vol. II, p. 12). The Plan, as the party before the court, necessarily includes those who must act for the Plan to administer it and to effectuate its policies. Title 29 U.S.C. § 1002(21)(A) deals with the meaning of a “fiduciary” under the Act. A person is deemed a fiduciary under that section “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.” The administrators, acting for the Plan as a party to this litigation, do have the discretionary authority and control in administering it. Under Article VIII of the Plan, titled “Administration,” members of the Administrative Board “shall be responsible for the general Administration of the Plan and for carrying out the provisions thereof,” and are given “all such powers as may be necessary” to this end, including control over “rights and benefits of any Employee ... to determine all claims, demands and actions arising out of the provisions of the Plan.” Under the circumstances, we consider that the Plan as a party, then, comes under the ERISA definition of a “fiduciary,” despite the fact that the Plan has entered into a separate agreement with an Ohio bank as trustee to provide for the holding of funds and for making distributions as directed by the Board" }, { "docid": "4396969", "title": "", "text": "of civil penalties only against a “fiduciary” who violates part 4 of Title I or “any other person” who knowingly participates in such a violation). And § 502(a) itself demonstrates Congress’ care in delineating the universe of plaintiffs who may bring certain civil actions. See, e. g., § 502(a)(3), 29 U.S.C. § 1132(a)(3) (“A civil action may be brought ... by a participant, beneficiary, or fiduciary ...” (emphasis added)); § 502(a)(5), 29 U.S.C. § 1132(a)(5) (“A civil action may be brought ... by the Secretary ...” (emphasis added)). Id. at 246-47,120 S.Ct. 2180. In short, the Court did not find a limit in § 1132(a)(3) as to who could be sued. We see no reason to read a limitation into § 1132(a)(1)(B) that the Supreme Court did not perceive in § 1132(a)(3). Our conclusion that potential defendants in actions brought under § 1132(a)(1)(B) should not be limited to plans and plan administrators is supported by a related section of the statute. Section 1132(d)(2) provides that “[a]ny money judgment under this subchapter against an employee benefit plan shall be enforceable only against the plan as an entity and shall not be enforceable against any other person unless liability against such person is established in his individual capacity under this subchapter.” The “unless” clause necessarily indicates that parties other than plans can be sued for money damages under other provisions of ERISA, such as § 1132(a)(1)(B), as long as that party’s individual liability is established. It is not enough to identify a plan administrator as a potential defendant, in addition to the plan itself. A plan administrator under ERISA has certain defined responsibilities involving reporting, disclosure, filing, and notice. See 29 U.S.C. §§ 1021, 1024, 1132(c), 1166. But the plan administrator can be an entity that has no authority to resolve benefit claims or any responsibility to pay them. In this case, for example, CTI was identified as the plan administrator, but it had nothing to do with denying Cyr’s claim for increased benefits. Reliance denied Cyr’s request for increased benefits even though, as the plan insurer, it was responsible for paying" }, { "docid": "9184972", "title": "", "text": "conclude that the relief plaintiffs seek is not equitable and accordingly affirm the district court's dismissal of plaintiffs' prohibited transaction claim. Under ERISA's prohibited transaction provisions, \"[a] fiduciary with respect to a plan shall not cause the plan to engage in a transaction\" with \"a party in interest\" for the \"furnishing of ... services\" if \"more than reasonable compensation is paid therefor.\" 29 U.S.C. §§ 1106(a)(1)(C), 1108(b)(2). ERISA provides a cause of action for remedying prohibited transactions: A civil action may be brought ... by a participant, beneficiary, or fiduciary (A) to enjoin any act or practice which violates any provision of [ERISA Title I] or the terms of the plan, or (B) to obtain other appropriate equitable relief (i) to redress such violations or (ii) to enforce any provisions of [ERISA Title I] or the terms of the plan. Id. § 1132(a)(3). Because § 1132(a)(3)\"makes no mention at all of which parties may be proper defendants,\" a party in interest-including a non-fiduciary third party-may be sued under this provision for its participation in a prohibited transaction. Harris Tr. & Sav. Bank v. Salomon Smith Barney, Inc. , 530 U.S. 238, 246, 249-51, 120 S.Ct. 2180, 147 L.Ed.2d 187 (2000) ; see Landwehr v. DuPree , 72 F.3d 726, 734 (9th Cir. 1995). And even though the plan fiduciary is the one who \"cause[d] the plan to engage in [the prohibited] transaction,\" 29 U.S.C. § 1106(a)(1), the \"culpable fiduciary\" may still bring suit against \"the arguably less culpable\" party in interest because \"the purpose of the action is to recover money or other property for the [plan beneficiaries],\" Harris Tr. , 530 U.S. at 252, 120 S.Ct. 2180 (quoting Restatement (Second) of Trusts § 294 cmt. c, at 70 (1957) ). Thus, a plan fiduciary may (1) seek an injunction or \"other appropriate equitable relief\" (2) against a \"party in interest\" (3) for participating in a transaction for services for which \"more than reasonable compensation is paid.\" The parties and the district court all agree that the second and third components are satisfied in this case. Each defendant is a" }, { "docid": "23649499", "title": "", "text": "benefit plan to the extent it “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,” or “has any discretionary authority or discretionary responsibility in the administration of such plan.” 29 U.S.C. § 1002(21)(A). Section 404(a) of ERISA requires a fiduciary to “discharge [its] 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.” Id. § 1104(a)(1). Section 406(b) prohibits a fiduciary from engaging in certain transactions, including “deal[ing] with the assets of the plan in [its] own interest or for [its] own account.” Id. § 1106(b)(1). An ERISA fiduciary is also obligated to follow the terms of the plan, so long as they do not conflict with the statute. Id. § 1104(a)(1)(D). In essence, Plaintiffs allege that MetLife used the TCA mechanism to misappropriate plan assets. Specifically, they allege that MetLife violated § 1104(a)’s “exclusive purpose” requirement and § 1106(b)(l)’s prohibition against self-dealing by retaining in its general account the funds backing their TCAs and investing those funds for its own benefit. These claims fail. MetLife discharged its fiduciary obligations as a claims administrator and ceased to be an ERISA fiduciary when, in accordance with the Plans, it created Plaintiffs’ TCAs, credited them with the amount of benefits due, and issued checkbooks enabling Plaintiffs to withdraw their proceeds at any time. Thus, MetLife was not acting in a fiduciary capacity when it invested the funds backing Plaintiffs’ TCAs. The sponsor of an employee welfare benefit plan is generally afforded wide latitude to design the plan, including the mechanism for distributing benefits, as it sees fit. See Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 444, 119 S.Ct. 755, 142 L.Ed.2d 881 (1999) (plan sponsor makes the “decision regarding the form or structure of the Plan such as who is entitled to receive Plan benefits and in what amounts, or how such benefits are calculated”); Pompano v. Michael Schiavone & Sons, Inc., 680 F.2d 911," }, { "docid": "23545606", "title": "", "text": "with respect to the Plan, and that they violated their fiduciary duties in at least four ways: (1) by administering the Plan contrary to its terms, in violation of 29 U.S.C. § 1104(a)(1)(D) ; (2) by engaging in self-dealing in Plan assets, contrary to 29 U.S.C. § 1106(b)(1) ; (3) by acting in a transaction involving the Plan on behalf of a party whose interests were adverse to those of the Plan participants, in violation of 29 U.S.C. § 1106(b)(2) ; and (4) by receiving consideration from a party dealing with the Plan in connection with a transaction involving Plan assets, contrary to 29 U.S.C. § 1106(b)(3). Key to the merits of ARN’s claims against Cafcomp is whether Cafcomp is a fiduciary, because a cause of action for a breach of fiduciary duties can only be brought against a “fiduciary” within the meaning of ERISA. See id. §§ 1105(a), 1109(a). As a fiduciary, ARN may bring an ERISA cause of action against another fiduciary for various ERISA violations. See id. § 1132(a)(2), (3). ERISA provides the following definition of a 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. 29 U.S.C. § 1002(21)(A). We have explained that Congress intended the term “ERISA fiduciary” to be interpreted broadly. See Brock v. Hendershott, 840 F.2d 339, 342 (6th Cir.1988)(“ ‘Thus, “fiduciary” should be defined not only by reference to particular titles, such as “trustee” but also by considering the authority which a particular person has or exercises over an employee benefit plan.’ ” (quoting Donovan v. Mercer, 747 F.2d 304, 308 (5th Cir.1984))). Whether Cafcomp owed a fiduciary duty depends" }, { "docid": "16139581", "title": "", "text": "must repay too much debt. Moreover, the extent to which the tax savings on the deductibility of BAI’s contribution to the ESOP translated into dollar-for-dollar savings to BAI, or to the ESOP’s investment, is dubious. The consequences of one deduction are too remote, given the complexity of today’s tax code, to translate into a measurable effect on damages. We thus reject the Defendants’ argument and hold that the district court did not clearly err by refusing to exclude the $3.8M internal loan payment from the Defendants’ liability based on its alleged tax benefits to ' BAI. IV. BFLLC’s Joint & Several Liability ERISA plan participants may assert a cause of action “to obtain other appropriate equitable relief (i) to redress [ERISA violations] or (ii) to enforce any provisions of this subchapter.” ERISA § 502(a)(3), 29 U.S.C. § 1132(a)(3). This provision authorizes suits against a non-fiduciary “party in interest” to a prohibited transaction barred by ERISA § 406(a), 29 U.S.C. § 1106(a). See Harris Trust and Sav. Bank v. Salomon Smith Barney, Inc., 530 U.S. 238, 245-54, 120 S.Ct. 2180, 2186-91, 147 L.Ed.2d 187 (2000). There is no dispute that the sale of BAI stock from BFLLC to the ESOP was a transaction between the plan and a party in interest. As a non-fiduciary party in interest, BFLLC is subject to liability even though it had no duty to the plan under substantive ERISA provisions. See id. at 245, 2186-87, 120 S.Ct. 2180; ACS Recovery Servs., Inc. v. Griffin, 723 F.3d 518, 524-525 (5th Cir.2013) (en banc); Bombardier Aerospace Emp. Welfare Benefits Plan v. Ferrer, Poirot and Wansbrough, 354 F.3d 348, 353-54 (5th Cir.2003). The district court held BFLLC jointly and severally liable with the other Defendants in the amount of $885,065.25 for overpayments plus $390,604.12 in prejudgment interest, or a total of $1,275,669.37. Perez, 54 F.Supp.3d at 681. The court explained that “[t]his figure represents the overpayment on amounts actually received by BFLLC and does not include the overpayment on the $3.8 million that the ESOP paid to BAI but BAI never paid to BFLLC.” Id. In other words, BFLLC" } ]

[ { "docid": "22236271", "title": "", "text": "This view is additionally enforced if,, as stated by counsel for the plaiu'tift', in their argument, the Supreme Court of the State has decided that, under the act of. 1843 of the Louisiana legislature, no wharfage tax or duty can he levied or collected by' the city. We are of opinion that upon the face of the ordinance itself, as applied to the recognized condition of the river and its banks within-the city, the dues here claimed cannot be, supported as a compensation for the use of tlie city’s wharves, but that it'is a tax upon every vessel which stops, either by landing or mooring, in the waters of the Mississippi River within the city of New Orleans, for the privilege of so landing or mooring. In this view of the subject, as the assessment of the tax is measured by the.tonnage of the vessel, it falls directly within the prohibition of the Constitution, namely, “ that no State shall, without the consent of Congress, lay any duty of tonnage.” Whatever more general or more limited view may be entertained of the true meaning of this clause, it is perfectly clear that a duty or tax or burden imposed under the authority of the State, which is, by the law imposing it,'to be measured by the capacity of the vessel, and is in its essence a contribution claimed for the privilege of arriving and departing from a port of the United States, is within ■the prohibition. There have been, several cases before this court involving the construction of this provision. The more recent and wrnll considered of these are The Steamship Company v. The Portwardens, The State Tonnage Tax Cases, and Peete v. Morgan. In the first of these cases the late Chief Justice, who delivered the opinion, seemed inclined to guard against too narrow a construction of the clause, lest its spirit and purpose might be evaded. He says, “ that in the most obvious and general sense, it is.true, the words describe a duty proportioned to the tonnage of the vessel; a certain rate on each ton. But" } ]

[ { "docid": "11101302", "title": "", "text": "on those cases in which a tax, levied in the guise of wharfage or a charge for medical inspection, was condemned because imposed on all vessels entering a port, whether receiving the benefit of the service or not, see Steamship Co. v. Portwardens, supra; Cannon v. New Orleans, supra; Peete v. Morgan, 19 Wall. 581. It argues that the present fees must similarly be condemned because imposed on all vessels entering the port, and points out that appellant has neither asked nor received any police service such as that which the state court regarded as the basis for the charge. But the policing of a harbor so as to insure the safety and facility of movement of vessels using it differs from wharfage or other services which benefit only the particular vessels using them. It is not any the less a service beneficial to appellant because its vessels have not been given any special assistance. The benefits which flow from the enforcement of regulations, such as the present, to protect and facilitate traffic in a busy harbor inure to all who enter it. Upon this ground, among others, a fee for half pilotage imposed upon vessels such as were not required to take a pilot was upheld in Cooley v. Board of Wardens, supra, 312, 313. We conclude that a reasonable charge for a service such as the present is neither within the historic meaning of the phrase “ duty of tonnage ” nor the purpose of the constitutional prohibition. It is unnecessary to consider other types of port charges, as for dredging or other forms of harbor improvement, with respect to which different considerations may apply. 2. The present fee to defray the cost of a purely local regulation of harbor traffic is not an objectionable burden on commerce. State regulations of harbor traffic, although they incidentally affect commerce, interstate or foreign, are of local concern. So long as they do not impede the free flow of commerce and .are not made the subject of regulation by Congress they are not forbidden. Willson v. Black-Bird Creek Marsh Co., 2" }, { "docid": "22046720", "title": "", "text": "misconception of those cases. The statute of Alabama declared invalid was not a provision to secure or regulate compensation for wharfage, or for any services rendered to the vessels taxed. It imposed a tax “upon all steamboats, vessels, and other water-crafts plying in the navigable waters of the State,” to be levied “ at the rate of- one dollar per ton of the registered tonnage thereof.” It did not tax the boats as property in proportion to their value, but according to their capacity, or, as was said, “ solely and exclusively on the basis of their cubical contents, as' ascertained by the rules of admeasurement -and computation prescribed by Congress.” It was the nature of the tax or duty, coupled with the mode of assessing it, which made the law a violation of the Constitution. As stated, the vessels taxed were such as were plying in the navigable waters- of the State. If not plying.'in those waters, they were not taxed. The tax was, therefore, an impediment to navigation in those waters, which led the court to say that it was as instruments of commerce and not as property the vessels were required to contribute to the revenues of the State. The fact that the-tax was proportioned to the tonnage of the vessels taxed was relied upon only as supporting the conclusion that they were not taxed as property, but as instruments of commerce; and the court, in view of all these considerations, remarked, “ Beyond all question, the act is an act to raise revenue without any corresponding or- equivalent benefit- or advantage to the vessel's taxed or to the ship-owners, and consequently it is not to be upheld by virtue of the rules applied in the construction of -laws regulating pilot dues and-port charges.” Nothing in these eases justifies the -assertion that either wharfage or port charges are duties of tonnage, merely because they are proportioned to the actual tonnage or- cubical capacity of vessels: It would be a strange -misconception of the purpose of the framers of the Constitution were its provisions thus understood. What was" }, { "docid": "22387574", "title": "", "text": "waters subject to a license of the grantees of the State, that is, to such a tax or other burden as they might levy, was an obstruction to commerce between the States and in conflict with the laws of Congress respecting thé coasting trade. Although the sole point in judgment was whether the State could regulate commerce on her waters in the face of such legislation by Congress, yet the argument of the court was that such attempted control of the navigable waters of the- State was an encroachment upon the power of Congress, independently of that legislation. In Steamship Co. v. Port Wardens, 6 Wall. 31, it was held that a statute of Louisiana, declaring that the master and ■ wardens of the port of New Orleans should be entitled to demand and receive, in addition to other fees, the sum of five dollars for every vessel arriving at that port, whether called on to perform 'any service or not, was unconstitutional and void, as imposing a burden upon commerce, both inter-State and foreign. The exaction was, in effect, a tax for entering the port, that is, for the navigation of its waters. The control of the navigable waters of the port, and of all public waters constituting channels of communication between the States and foreign countries, is embraced within the commercial power of Congress, and equally beyond the interference of the States. It was claimed that the tax was for compensation to the master and wardens for the performance of certain duties required of them, and that the law for its collection stood, therefore, on the. same constitutional grounds as the laws authorizing the collection of pilotage; but the court answered that no acts of Congress recognize such laws as that of Louisiana as proper and beneficial regulations, whilst State laws in respect to pilot-age are thus recognized. The court also added, that the right to recover pilotage and half-pilotage, prescribed, by State legislation, rested not only upon State laws, but upon contract, observing that pilotage was compensation for services performed, and half-pilotage was compensation for services which" }, { "docid": "22874853", "title": "", "text": "have no evidence that any other, construction has been given to it.. The complainant does not allege that the supposed obnoxious application of the ordinance has ever been made against any of its vessels, or against any vessels. The charge of the bill .is only “ that under and by virtue of said ordinance, the city of Parkersburg has, ever since the time of organization of your orator, required your orator, its agents and servants, to pay to it the charges provided in said ordinance for all steamboats owned or controlled by your orator that have discharged o.r received freight or passengers, or landed at its said wharf.” There is no complaint that wharfage has been exacted when the complainant’s vessels have merely anchored in the stream, or have moored at any other place than the city’s wharf i or when they have stopped at or in front of the wharf itself for-any other purpose than that of discharging or receiving freight and passengers. This makes the case a very different one from that which was presented in Cannon v. New Orleans, 20 Wall. 577. There the ordinance objected to' imposed levee duties “on all steamboats which shall moor or land in any part of the port of New Orleans; ” and this court could do no otherwise than hold that such an ordinance had the effect of laying a duty of tonnage, against the express prohibition of the Constitution. The same view had previously been taken of an act of the legislature of Louisiana, authorizing tbe port wardens of New Orleans to demand and receive five dollars from every vessel arriving in that port, whether called on to perform any service or not, Steamship Company v. Port Wardens, 6 Wall. 31; and of a law of Texas, which required every vessel arriving at the quarantine station of any town on the coast of Texas to pay five dollars for the first hundred tons, and one and a half cents for each additional ton. Peete v. Morgan, 19 id. 581. So, when a law of New York required all vessels" }, { "docid": "22074503", "title": "", "text": "97 id. 566; and Webber v. Virginia, 103 id. 344. Taxes upon passenger carriers of a specific amount for each passenger carried were held to be taxes on the passengers, in Passenger Cases, 7 How. 283; Crandall v. State of Nevada, 6 Wall. 35; and Henderson v. The Mayor, 92 U. S. 259. Taxes on vessels according to measurement, without any reference to value, were declared to be taxes on tonnage. State Tonnage Cases, 12 Wall. 204; Peete v. Morgan, 19 id. 581; Cannon v. New Orleans, 20 id. 577; and Inman Steamship Co. v. Tinker, 94 U. S. 238. The present case, as it seems to us, comes within this principle. The tax is the same on every message sent, and because it is sent, without regard to the distance carried or the price charged. It is in no respect proportioned according to the business done. If the message is sent the tax must be paid, and the amount determined solely by the class to which it belongs. If it is full rate, the tax, is one cent, and if less than full rate, one-half cent. Clearly if a fixed tax for every two thousand pounds of freight carried is a tax on the freight, or for every measured ton of a vessel a tax on tonnage, or for every passenger carried a tax on the passenger, or for the sale of goods a tax on the goods, this must be a tax on the messages. As such, so far as it operates on private messages sent out of the State, it is a regulation of foreign and inter-state commerce and beyond the power of the State. That is fully established' by the cases already cited. As to the government messages, it is a tax by the State on the means employed by the government of the United States to execute its constitutional powers, and, therefore, void. It was so decided in McCulloch v. Maryland (4 Wheat. 316) and has never been doubted since. It follows that the judgment, so far as it includes the tax on messages sent" }, { "docid": "7098721", "title": "", "text": "tonnage clause prohibits “all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port.” Id. at 265-66, 56 S.Ct. at 196. The clause does not, however, prohibit charges made by a state authority for services rendered such as pilotage, wharfage, charges for the use of locks, or fees for medical inspections. Id. The Court therefore upheld Mobile’s fee. The Clyde Mallory Court distinguished the general services rendered by the Port of Mobile from earlier cases which involved a tax, levied in the guise of wharf-age or medical inspections. Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31, 18 L.Ed. 749 (1867); Peete v. Morgan, 86 U.S. (19 Wall.) 581, 22 L.Ed. 201 (1873); and Cannon v. New Orleans, 87 U.S. (20 Wall.) 577, 22 L.Ed. 417 (1874). The latter were condemned because they were imposed on all vessels entering a port whether or not they received the benefit of the services. Clyde Mallory, 296 U.S. at 266, 56 S.Ct. at 196. In contrast, the services rendered by the Port of Mobile inured to all who entered the port. A reasonable charge for general services is not a prohibited tonnage duty. Id. at 267, 56 S.Ct. at 196-97. The services rendered by the Port also inure to all who use the Port of Plaquemines. All vessels, whether or not they catch fire or need rescue services, benefit from their availability. Given the seriousness of explosions, fires or other accidents, particularly in view of the crowded condition of this stretch of the Mississippi River, it is especially important that rescue operations be swift and that fires be promptly extinguished. NOS A argues, apparently in the alternative, that Clyde Mallory is an anomaly. NOS A here relies on Madison’s notes of the Constitutional Convention for the proposition that the tonnage clause prohibits even tariffs levied for services which inure to the benefit of all vessels. This argument, even if correct, would be unavailing. As a" }, { "docid": "22061655", "title": "", "text": "subject of commerce, or exacted a license fee from parties engaged in commercial pursuits, or created an impediment to the free navigation of some public waters, or prescribed conditions in accordance with which commerce in particular articles or between particular places was required to be conducted. In all the cases the legislation condemned operated directly upon commerce, either by way of tax upon its business, license upon its pursuit in particular channels, or conditions for carrying it on. Thus, in The Passenger Cases, 7 How. 445, the laws of New York and Massachusetts exacted a tax from the captains of vessels bringing passengers from foreign ports for every passenger landed. In the Wheeling Bridge Case, 13 id. 518, the statute of Virginia authorized the erection of a bridge, which was held to obstruct the free navigation of the river Ohio. In the case of Sinnot v. Davenport, 22 id. 227, the statute of Alabama required the owner of a steamer navigating the waters of the State to file, before the boat left the port of Mobile, in the office of the probate judge of Mobile County, a statement in writing* setting forth the name of the vessel, and of the owner or owners, and his or their place of residence and interest in the vessel, and prescribed penalties for neg lecting the requirement. It thus imposed conditions for carrying on the coasting trade in the waters of the State in addition to those prescribed by Congress. And in all the other cases where legislation of a State has been held to be null for interfering with the commercial power of Congress, as in Brown v. Maryland, 12 Wheat. 425, State Tonnage Tax Cases, 12 Wall. 204, and Welton v. Missouri, 91 U. S. 275, the legislation created, in the way of tax, license, or condition, a direct burden upon commerce, or in some way directly interfered with its freedom. In the present case no such operation can be ascribed to the statute of Indiana. That statute imposes no tax, prescribes no duty, and in no respect interferes with any regulations" }, { "docid": "11101300", "title": "", "text": "free to tax the privilege of access by vessels to their harbors the prohibition against duties on imports and exports could have been nullified by taxing the vessels transporting the merchandise. At the time of the adoption of the Constitution “ tonnage ” was a well understood commercial term signifying in America the internal cubic capacity of a vessel. See Inman Steamship Co. v. Tinker, 94 U. S. 238, 243. And duties of tonnage and duties on imports were known to commerce as levies upon the privilege of access by vessels or goods to the ports or to the territorial limits of a state and were distinct from fees or charges by authority of a state for services facilitating commerce, such as pilotage, towage, charges for loading and unloading cargoes, wharfage, storage and the like. See Cooley v. Board of Wardens, 12 How. 299, 314; Inman Steamship Co. v. Tinker, supra, 243. Hence the prohibition against' tonnage duties has been deemed to embrace all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port, Steamship Co. v. Portwardens, supra; State Tonnage Tax Cases, 12 Wall. 204; Cannon v. New Orleans, 20 Wall. 577; Inman Steamship Co. v. Tinker, supra; and see Huse v. Glover, 119 U. S. 543, 549, 550. But it does not extend to charges made by state authority, even though graduated according to tonnage, for services rendered to and enjoyed by the vessel, such as pilotage, Cooley v. Board of Wardens, supra, or wharfage, Packet Co. v. Keokuk, supra; Packet Co. v. St. Louis, 100 U. S. 423; Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691; Ouachita River Packet Co. v. Aiken, 121 U. S. 444; or charges for the use of locks on a navigable river, Huse v. Glover, supra, or fees for medical inspection, Morgan’s Steamship Co. v. Board of Health, 118 U. S. 455. Appellant places its reliance" }, { "docid": "22061656", "title": "", "text": "Mobile, in the office of the probate judge of Mobile County, a statement in writing* setting forth the name of the vessel, and of the owner or owners, and his or their place of residence and interest in the vessel, and prescribed penalties for neg lecting the requirement. It thus imposed conditions for carrying on the coasting trade in the waters of the State in addition to those prescribed by Congress. And in all the other cases where legislation of a State has been held to be null for interfering with the commercial power of Congress, as in Brown v. Maryland, 12 Wheat. 425, State Tonnage Tax Cases, 12 Wall. 204, and Welton v. Missouri, 91 U. S. 275, the legislation created, in the way of tax, license, or condition, a direct burden upon commerce, or in some way directly interfered with its freedom. In the present case no such operation can be ascribed to the statute of Indiana. That statute imposes no tax, prescribes no duty, and in no respect interferes with any regulations for the navigation and use of vessels. It only declares a general principle respecting the liability of all persons within the jurisdiction of the State for torts resulting in the death of parties injured. And in the application of the principle it makes no difference where the injury complained of occurred in the State, whether on land or on water. General legislation of this kind, prescribing the liabilities or duties of citizens of a State, without distinction as to pursuit or calling, is not open to any valid objection because it may affect persons engaged in foreign or inter-State commerce. Objection might with equal propriety be urged against legislation prescribing the form in which contracts shall be authenticated, or property descend or be distributed on the death of its oAvner, because applicable to the contracts or estates of persons engaged in such commerce. In conferring upon .Congress the regulation of commerce, it was never intended to cut the States off from legislating on all subjects relating to the health, life, and safety of their citizens," }, { "docid": "11101299", "title": "", "text": "the benefits and protection of the rules to shipping in the harbor. We accept the conclusion of the state court that it is charged for a policing service rendered by the state in the aid of the safe and efficient use of its port, and we address ourselves to the question- whether such a fee is forbidden by the Constitution either because it is a “ duty of tonnage ” or an unwarranted burden on interstate commerce. 1. It seems clear that the prohibition against the imposition of any duty of tonnage was due to the desire of the Framers to supplement Art. I, § 10, Clause 2, denying to the states power to lay duties on imports or exports, see Steamship Co. v. Portwardens, 6 Wall. 31, 35; Packet Co. v. Keokuk, 95 U. S. 80, 87, 88, by forbidding a corresponding tax on the privilege of access by vessels to the ports of a state, and to their doubts whether the commerce clause would accomplish that purpose. If the states had been left free to tax the privilege of access by vessels to their harbors the prohibition against duties on imports and exports could have been nullified by taxing the vessels transporting the merchandise. At the time of the adoption of the Constitution “ tonnage ” was a well understood commercial term signifying in America the internal cubic capacity of a vessel. See Inman Steamship Co. v. Tinker, 94 U. S. 238, 243. And duties of tonnage and duties on imports were known to commerce as levies upon the privilege of access by vessels or goods to the ports or to the territorial limits of a state and were distinct from fees or charges by authority of a state for services facilitating commerce, such as pilotage, towage, charges for loading and unloading cargoes, wharfage, storage and the like. See Cooley v. Board of Wardens, 12 How. 299, 314; Inman Steamship Co. v. Tinker, supra, 243. Hence the prohibition against' tonnage duties has been deemed to embrace all taxes and duties regardless of their name or form, and even" }, { "docid": "22046719", "title": "", "text": "the vessels, but because the charge was not for wharfage or any service rendered. It was for stopping in the harbor, though no wharf was used. Such, also, was North-western Packet Co. v. St. Paul, 3 Dill. 454. So, in Steamship Company v. Port Wardens, 6 Wall. 31, the statute held void imposed a tax upon every ship entering the port. This was held to be alike a regulation of commerce and a duty of tonnage. It was a sovereign exaction, not a charge for compensation. Of the same character was the tax held prohibited in Peete v. Morgan, 19 id. 581. It is insisted, however, on behalf of the plaintiffs in error, that the charge prescribed by the ordinance must be considered as an imposition of a duty of tonnage, because it, is regulated by and proportioned to the number of tons of the vessels using the wharf; and the argument is attempted to be supported by the ruling of this court in State Tonnage Tax Cases, 12 Wall. 204. But this is a misconception of those cases. The statute of Alabama declared invalid was not a provision to secure or regulate compensation for wharfage, or for any services rendered to the vessels taxed. It imposed a tax “upon all steamboats, vessels, and other water-crafts plying in the navigable waters of the State,” to be levied “ at the rate of- one dollar per ton of the registered tonnage thereof.” It did not tax the boats as property in proportion to their value, but according to their capacity, or, as was said, “ solely and exclusively on the basis of their cubical contents, as' ascertained by the rules of admeasurement -and computation prescribed by Congress.” It was the nature of the tax or duty, coupled with the mode of assessing it, which made the law a violation of the Constitution. As stated, the vessels taxed were such as were plying in the navigable waters- of the State. If not plying.'in those waters, they were not taxed. The tax was, therefore, an impediment to navigation in those waters, which led" }, { "docid": "22074502", "title": "", "text": "business in that State to pay a fixed sum as a tax “ on each two thousand pounds of freight carried,” without regard to the distance moved, or' charge made, was unconstitutional, so far as it related to goods taken through the State, or from points without the- State to points within, or from points within to points without, because to that extent it was a regulátion of foreign and inter-state commerce. In this the court but applied the rule, announced in Brown v. Maryland (12 Wheat. 419), that where the burden of a tax falls on a thing which is the subject of taxation, the tax is to be considered as laid on the thing rather than on him who is charged with the duty of paying it into the treasury. In that case, it was said, a tax on the sale of an article, imported only for .sale, was a tax on the article itself. To the same general effect are Welton v. State of Missouri, 91 U. S. 275; Cook v. Pennsylvania, 97 id. 566; and Webber v. Virginia, 103 id. 344. Taxes upon passenger carriers of a specific amount for each passenger carried were held to be taxes on the passengers, in Passenger Cases, 7 How. 283; Crandall v. State of Nevada, 6 Wall. 35; and Henderson v. The Mayor, 92 U. S. 259. Taxes on vessels according to measurement, without any reference to value, were declared to be taxes on tonnage. State Tonnage Cases, 12 Wall. 204; Peete v. Morgan, 19 id. 581; Cannon v. New Orleans, 20 id. 577; and Inman Steamship Co. v. Tinker, 94 U. S. 238. The present case, as it seems to us, comes within this principle. The tax is the same on every message sent, and because it is sent, without regard to the distance carried or the price charged. It is in no respect proportioned according to the business done. If the message is sent the tax must be paid, and the amount determined solely by the class to which it belongs. If it is full rate, the" }, { "docid": "22046718", "title": "", "text": "by individual enterprise and recognized everywhere as private property, a reasonable compensation can be exacted.. And it may be safely admitted, also, that it is within the power of the State to regulate this compensation, so as to prevent extortion, a power which is often very properly delegated to the local municipal authority. Nor do we see any reason why, when a city ,or other municipality is the owner of such structures, built by its own money, to assist vessels landing within its limits in the pursuit of their business, the city should not be allowed to exact and receive this reasonable compensation, as'well as individuals.” . No doubt, neither a State nor a municipal corporation can be permitted to impose a tax upon tonnage under cover of laws or ordinances ostensibly passed to collect wharfage. This has sometimes bqen attempted, but the ordinances will always be-carefully scrutinized. In Cannon v. New Orleans, the ordinance was held invalid, not because the charge was for wharf-age, nor éven because it was proportioned to the tonnage of the vessels, but because the charge was not for wharfage or any service rendered. It was for stopping in the harbor, though no wharf was used. Such, also, was North-western Packet Co. v. St. Paul, 3 Dill. 454. So, in Steamship Company v. Port Wardens, 6 Wall. 31, the statute held void imposed a tax upon every ship entering the port. This was held to be alike a regulation of commerce and a duty of tonnage. It was a sovereign exaction, not a charge for compensation. Of the same character was the tax held prohibited in Peete v. Morgan, 19 id. 581. It is insisted, however, on behalf of the plaintiffs in error, that the charge prescribed by the ordinance must be considered as an imposition of a duty of tonnage, because it, is regulated by and proportioned to the number of tons of the vessels using the wharf; and the argument is attempted to be supported by the ruling of this court in State Tonnage Tax Cases, 12 Wall. 204. But this is a" }, { "docid": "22387573", "title": "", "text": "While it is conceded that the property in a State belonging to a foreign' corporation engaged in foreign or inter-Staté commerce may be taxed equally with like property of a domestic.corporation engaged in that business, we are clear that a tax or other burden imposed on the property of either corporation because it is used to ' carry on- that commerce,- or upon the transportation of persons or property, or for the navigation of'the public waters over which the transportation is made, is invalid and void as an interfer-\" ’ence with, and an obstruction of, the power of Congress in the regulation of such commerce. This proposition is supported -, by many adjudications. Thus, in Gibbons v. Ogden, 9 Wheat. 1, the earliest and leading case upon the commercialpower of Congréss, it was held that the acts óf New York giving to Livingston and Pulton the exclusive right, for a.certain number of years, to navigate all the waters within its jurisdiction with vessels propelled by steam, were unconstitutional and void. Making the navigation of those waters subject to a license of the grantees of the State, that is, to such a tax or other burden as they might levy, was an obstruction to commerce between the States and in conflict with the laws of Congress respecting thé coasting trade. Although the sole point in judgment was whether the State could regulate commerce on her waters in the face of such legislation by Congress, yet the argument of the court was that such attempted control of the navigable waters of the- State was an encroachment upon the power of Congress, independently of that legislation. In Steamship Co. v. Port Wardens, 6 Wall. 31, it was held that a statute of Louisiana, declaring that the master and ■ wardens of the port of New Orleans should be entitled to demand and receive, in addition to other fees, the sum of five dollars for every vessel arriving at that port, whether called on to perform 'any service or not, was unconstitutional and void, as imposing a burden upon commerce, both inter-State and foreign." }, { "docid": "18705502", "title": "", "text": "States” at the rate of six cents per ton upon all such as were built within the United States, and belonged to American citizens; of thirty cents per ton upon all such as should thereafter be built within the United States, belonging to subjects of foreign powers, and of fifty cents per ton upon all other ships or vessels, with a proviso that no American ship or vessel employed in the coasting trade or fisheries should pay tonnage more than once in any year This distinction between “goods, wares, and merchandise,” and “ships or vessels,” has been maintained ever since, although the amount of such duties has been repeatedly and sometimes radically changed. At the time of the arrival of the Conqueror, tonnage duties were imposed unde t the act of June 26, 1884, as amended by section eleven of the act of June 19, 1886, with a proviso that the President of the United States might suspend the collection of them in certain specified cases. In addition thereto there was, by Rev. Stat. §4225, a duty of fifty cents per ton, denominated “light money,” levied and collected on all vessels not of the United States which might enter the ports of the United States; although, by §4226, there was a provision that this tax should not be imposed upon any unregistered vessel “owned by citizens of the United States, and carrying a sea letter, or other regular document, issued from a customhouse of the United States, proving the vessel to be American property.” It would seem that, under this section and in virtue of the collector’s certificate to her bill of sale, stating that her owner was an American citizen, the Conqueror would not thereafter be subject 'to the payment of light money. The Miranda, 1 U. S. App. 228. ‡ * * * }{: ‡ In view of the elaborate opinion of the district judge upon this branch of the case it is unnecessary to extend this discussion further. We think that the liability of ships and vessels to tonnage dues and to light money, except where a" }, { "docid": "11101301", "title": "", "text": "though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port, Steamship Co. v. Portwardens, supra; State Tonnage Tax Cases, 12 Wall. 204; Cannon v. New Orleans, 20 Wall. 577; Inman Steamship Co. v. Tinker, supra; and see Huse v. Glover, 119 U. S. 543, 549, 550. But it does not extend to charges made by state authority, even though graduated according to tonnage, for services rendered to and enjoyed by the vessel, such as pilotage, Cooley v. Board of Wardens, supra, or wharfage, Packet Co. v. Keokuk, supra; Packet Co. v. St. Louis, 100 U. S. 423; Packet Co. v. Catlettsburg, 105 U. S. 559; Transportation Co. v. Parkersburg, 107 U. S. 691; Ouachita River Packet Co. v. Aiken, 121 U. S. 444; or charges for the use of locks on a navigable river, Huse v. Glover, supra, or fees for medical inspection, Morgan’s Steamship Co. v. Board of Health, 118 U. S. 455. Appellant places its reliance on those cases in which a tax, levied in the guise of wharfage or a charge for medical inspection, was condemned because imposed on all vessels entering a port, whether receiving the benefit of the service or not, see Steamship Co. v. Portwardens, supra; Cannon v. New Orleans, supra; Peete v. Morgan, 19 Wall. 581. It argues that the present fees must similarly be condemned because imposed on all vessels entering the port, and points out that appellant has neither asked nor received any police service such as that which the state court regarded as the basis for the charge. But the policing of a harbor so as to insure the safety and facility of movement of vessels using it differs from wharfage or other services which benefit only the particular vessels using them. It is not any the less a service beneficial to appellant because its vessels have not been given any special assistance. The benefits which flow from the enforcement of regulations, such as the present, to protect and facilitate traffic in a" }, { "docid": "22874854", "title": "", "text": "was presented in Cannon v. New Orleans, 20 Wall. 577. There the ordinance objected to' imposed levee duties “on all steamboats which shall moor or land in any part of the port of New Orleans; ” and this court could do no otherwise than hold that such an ordinance had the effect of laying a duty of tonnage, against the express prohibition of the Constitution. The same view had previously been taken of an act of the legislature of Louisiana, authorizing tbe port wardens of New Orleans to demand and receive five dollars from every vessel arriving in that port, whether called on to perform any service or not, Steamship Company v. Port Wardens, 6 Wall. 31; and of a law of Texas, which required every vessel arriving at the quarantine station of any town on the coast of Texas to pay five dollars for the first hundred tons, and one and a half cents for each additional ton. Peete v. Morgan, 19 id. 581. So, when a law of New York required all vessels of a certain class which should enter the port of New York, or load or unload, or make fast to any wharf therein, to pay a certain rate per ton, this was held to be an' unconstitutional imposition, because it applied to all vessels, whether they used a wharf or not. Inman Steamship Co. v. Tinker, 94 U. S. 238. All these were'Clear cases of duty on tonnage as distinguished from wharfage; and the terms of the ordinances and laws in question were very different from those of the ordinance now under consideration. We think it very clear that the ordinance in question cannot be regarded as imposing any other charge than that of wharfage. The fact that the rates charged’ are graduated by the size or tonnage of the vessel is of no consequence in this connection. This does not make it a duty of tonnage in the sense of the Constitution and the acts of Congress. So we have expressly decided in several recent cases. Cannon v. New Orleans, 20 Wall. 577; Packet" }, { "docid": "22874855", "title": "", "text": "of a certain class which should enter the port of New York, or load or unload, or make fast to any wharf therein, to pay a certain rate per ton, this was held to be an' unconstitutional imposition, because it applied to all vessels, whether they used a wharf or not. Inman Steamship Co. v. Tinker, 94 U. S. 238. All these were'Clear cases of duty on tonnage as distinguished from wharfage; and the terms of the ordinances and laws in question were very different from those of the ordinance now under consideration. We think it very clear that the ordinance in question cannot be regarded as imposing any other charge than that of wharfage. The fact that the rates charged’ are graduated by the size or tonnage of the vessel is of no consequence in this connection. This does not make it a duty of tonnage in the sense of the Constitution and the acts of Congress. So we have expressly decided in several recent cases. Cannon v. New Orleans, 20 Wall. 577; Packet Company v. Keokuk, 95 U. S. 80; Packet Company v. St. Louis, 100 id. 423; Guy v. Baltimore, id. 434; Packet Company v. Catlettsburg, 105 id. 559. When the Constitution declares that “ No State- shall, without the consent of Congress, lay any duty of tonnage ; ” and when Congress, in sect. 4220 of the Revised Statutes, declares that “ No vessel belonging to any citizen of the United States, trading from one port within the United States to another port within the United States, or employed in the bank, whale, or other fisheries, shall be subject to tonnage.tax or duty, if such vessel be licensed, registered, or enrolled,” — they mean by the phrases, “ duty of tonnage,” and “ tonnage tax or duty,” a charge, tax, or duty on a vessel for the privilege of entering a port; and although usually levied according to tonnage, and so acquiring its name, it is not confined to that method of rating the charge. It has nothing to do with wharfage, which is a charge" }, { "docid": "7098720", "title": "", "text": "constitutional issues which the agency has declined to reach. Finally, the FMC argues that cases arising under the Constitution must be brought in the district courts under 28 U.S.C. § 1331 (1982). The FMC confuses the grant of federal question jurisdiction to district courts with an exclusive grant of jurisdiction. There is nothing in section 1331 which excludes the appellate courts from considering constitutional issues in a petition for review. We now turn to the merits of the tonnage clause claim. B. Our analysis of the tonnage clause is a direct application of the Supreme Court’s decision in Clyde Mallory Lines v. Alabama, 296 U.S. 261, 56 S.Ct. 194, 80 L.Ed. 215 (1935). The Port of Mobile, Alabama policed the harbor to insure the safety and facility of the movement of vessels. Id. at 266, 56 S.Ct. at 196. It charged a fee for the purpose of meeting the expenses associated with the supervision of the port and the execution of its regulations. Id. at 264, 56 S.Ct. at 195. The Coürt noted that the tonnage clause prohibits “all taxes and duties regardless of their name or form, and even though not measured by the tonnage of the vessel, which operate to impose a charge for the privilege of entering, trading in, or lying in a port.” Id. at 265-66, 56 S.Ct. at 196. The clause does not, however, prohibit charges made by a state authority for services rendered such as pilotage, wharfage, charges for the use of locks, or fees for medical inspections. Id. The Court therefore upheld Mobile’s fee. The Clyde Mallory Court distinguished the general services rendered by the Port of Mobile from earlier cases which involved a tax, levied in the guise of wharf-age or medical inspections. Steamship Co. v. Portwardens, 73 U.S. (6 Wall.) 31, 18 L.Ed. 749 (1867); Peete v. Morgan, 86 U.S. (19 Wall.) 581, 22 L.Ed. 201 (1873); and Cannon v. New Orleans, 87 U.S. (20 Wall.) 577, 22 L.Ed. 417 (1874). The latter were condemned because they were imposed on all vessels entering a port whether or not they received the" }, { "docid": "22046721", "title": "", "text": "the court to say that it was as instruments of commerce and not as property the vessels were required to contribute to the revenues of the State. The fact that the-tax was proportioned to the tonnage of the vessels taxed was relied upon only as supporting the conclusion that they were not taxed as property, but as instruments of commerce; and the court, in view of all these considerations, remarked, “ Beyond all question, the act is an act to raise revenue without any corresponding or- equivalent benefit- or advantage to the vessel's taxed or to the ship-owners, and consequently it is not to be upheld by virtue of the rules applied in the construction of -laws regulating pilot dues and-port charges.” Nothing in these eases justifies the -assertion that either wharfage or port charges are duties of tonnage, merely because they are proportioned to the actual tonnage or- cubical capacity of vessels: It would be a strange -misconception of the purpose of the framers of the Constitution were its provisions thus understood. What was ’ intended by\" the provisions of the second clause of the tenth section of the first article was to protect the freedom of commerce, and nothing more. The prohibition of a duty of tonnage should, therefore, be-construed so as to carry out that intent. A-mere adherence to the letter, without reference to the. spirit and purpose, may in this case, mislead, as itr has'' misled in other cases.' It cannot be thought the framers of the Constitution, when they drafted the prohibition, had in mind charges for services rendered or for conveniences Furnished to vessels in port, which are facilities to commerce rather than hindrances to its freedom; and, if such charges were not in mind, the mode of ascertaining their reasonable amount could not have been. In Cooley v. The Board of Port Wardens, 12 How. 299, this court recognized a clear distinction between wharfage and duties on imports or exports, or duties on tonnage. Referring to the second paragraph of sect. 10, art. 1, of the Constitution, Curtis, J., speaking for the court," } ]

[ { "docid": "22253856", "title": "", "text": "contract is unambiguous). Since in this case intent can readily be determined by examining the November memorandum, summary judgment was perfectly appropriate even though there was considerable partial performance. B. Promissory Estoppel Summary judgment was not appropriate, however, on appellants’ promissory estoppel claim. In New York, promissory estoppel has three elements: “ ‘a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reason of his reliance.’ ” Esquire Radio & Elees., Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793 (2d Cir.1986) (quoting Restatement (Second) of Contracts § 90 (1981)); accord Reprosystem, 121 F.2d at 264. Prevailing on a promissory estoppel claim, however, sometimes entitles a party only to its out-of-pocket expenses, rather than to benefit-of-the-bargain damages. See, e.g., Esquire, 804 F.2d at 794 (affirming jury award out-of-pocket expenses under New York law); see also Restatement (Second) of Contracts §§ 90 comment d, 349 comment b; Palandjian v. Pahlavi, 614 F.Supp. 1569, 1581-82 n. 1 (D.Mass.1985) (equity requires only out-of-pocket award), appeal denied, 782 F.2d 313 (1st Cir.1986); cf. Nimrod Mktg. (Overseas) Ltd. v. Texas Energy Inv. Corp., 769 F.2d 1076, 1080 (5th Cir.1985) (losses from collateral supply contracts recoverable under promissory estoppel theory if breaching party had knowledge of special circumstances producing such damages) (Texas law), cert. denied, 476 U.S. 1104, 106 S.Ct. 1948, 90 L.Ed.2d 357 (1986); R. Renaissance, Inc. v. Rohm & Haas Co., 674 F.Supp. 591, 595-96 (S.D.Ohio 1987) (recov ery for promissory estoppel claim cannot include lost profits) (Ohio law). Appellants’ promissory estoppel claim is based on evidence that Arcadian knew and approved of API’s expenditures and collateral contracts, but Arcadian suddenly demanded a majority interest in API when the phosphate fertilizer business became “dramatically” profitable. When appellants rejected Arcadian’s proposed modification of the latter’s equity position, appellants say Arcadian called off negotiations— thereby violating its promise to bargain in good faith. Because appellants’ allegations raise genuine issues of material fact as to whether Arcadian made a clear, unambiguous promise to negotiate in good" } ]

[ { "docid": "13995224", "title": "", "text": "a legal fiction designed to substitute for contractual consideration where one party relied on another’s promise without having entered into an enforceable contract.” Randolph Equities, LLC v. Carbon Capital, Inc., 648 F.Supp.2d 507, 523 (S.D.N.Y.2009). “A plaintiff must satisfy four elements to succeed on a promissory-estoppel claim: (1) a promise, (2) reliance on the promise, (3) injury caused by the reliance, and (4) an injustice if the promise is not enforced.” Weinreb v. Hospital for Joint Diseases Orthopaedic Inst., 404 F.3d 167, 172 (2d Cir.2005) (quotation marks omitted). “Because it is a quasi-contractual claim, however, promissory estoppel generally applies only in the absence of a valid and enforceable contract.” Kwon v. Yun, 606 F.Supp.2d 344, 368 (S.D.N.Y.2009); see also Paxi LLC v. Shiseido Americas Corp., 636 F.Supp.2d 275, 287 (S.D.N.Y.2009) (“[Promissory estoppel] is a narrow doctrine which generally only applies where there is no written contract, or where the parties’ written contract is unenforceable for some reason.”); Holmes v. Lorch, 329 F.Supp.2d 516, 527 (S.D.N.Y.2004) (“Promissory estoppel is a rule applicable only in the absence of an enforceable contract.”) (quotation marks omitted). “When an enforceable contract does exist, the parties cannot assert a claim for promissory estoppel based on alleged promises that contradict the written contract.” NCC Sunday Inserts, Inc. v. World Color Press, Inc., 759 F.Supp. 1004, 1011 (S.D.N.Y.1991). That is because “where the terms of an unambiguous contract are inconsistent with the statements that form the basis of the claim, the claiming party could not have reasonably relied on those statements as a matter of law.” Randolph Equities LLC, 648 F.Supp.2d at 524 (emphasis in original and quotation marks omitted); see also Thayer v. Dial Indus. Sales, Inc., 85 F.Supp.2d 263, 272 (S.D.N.Y.2000) (“The representations relied upon are also inconsistent with the Employment Agreement in that plaintiff asserts that he was told that he would receive a bonus of sixty to one hundred percent of his salary, whereas the Employment Agreement states that a bonus is in the discretion of the Board of Directors.”); Kaplan v. Capital Co. of Am. LLC, 298 A.D.2d 110, 747 N.Y.S.2d 504, 506" }, { "docid": "19966004", "title": "", "text": "of promissory estoppel under New York law, Plaintiff must allege three things: “1) a clear and unambiguous promise; 2) rea sonable and foreseeable reliance on that promise; and 3) injury to the relying party as a result of the reliance.” Kaye v. Grossman, 202 F.3d 611, 615 (2d Cir.2000). However, as the alleged promise in this instance relates to an interest in land for a duration longer than one year, the New York Statute of Frauds is applicable. See N.Y. Gen. Oblig. Law § 5-703 (“A contract for the leasing for a longer period than one year, ... of any real property, or an interest therein, is void unless ... in writing.”). In order to rely on the equitable doctrine of promissory estoppel to overcome the Statute of Frauds, Plaintiff must show that the denial of relief requested would be “unconscionable.” Mobile Data Shred, Inc. v. United Bank of Switzerland, No. 99-CV-10315, 2000 WL 351516, at *4, 2000 U.S. Dist. LEXIS 4252, at *13 (S.D.N.Y. April 3, 2000) (internal quotation marks omitted) (citing Merex A.G. v. Fairchild Weston Sys., Inc., 29 F.3d 821, 826 (2d Cir.1994)). That is, Plaintiff must show injuries “beyond those that flow naturally” from the defendant’s breach; and in the absence of “ ‘egregious’ circumstances, courts have consistently rejected promissory estoppel claims.” Mobile Data Shred, Inc. v. United Bank of Switzerland, 2000 WL 351516, at *4-5, 2000 U.S. Dist. LEXIS 4252, at *13-14. Notwithstanding the other requirements, Plaintiff has not alleged any facts to show that denial of his relief would be unconscionable. At most, Plaintiff alleges that he suffered an unspecified “detriment” as a result of his reliance on the promise to renew the lease. (Am. ComplY 111.) Drawing a reasonable inference in Plaintiffs favor leads the Court to assume that the detriment suffered is the loss of housing resulting from Executive Towers’ decision not to renew the lease. To this end, it could hardly be said that this is not the sort of injury that would flow naturally from the breach of an oral contract to renew a lease. However, as the immediate situation" }, { "docid": "1504520", "title": "", "text": "promise con cerning future intent[]”). Not only are these two estoppel doctrines often confused because of the overlap in terms of factual analysis, but that confusion is compounded because some courts use promissory estoppel and equitable estoppel interchangeably. See, e.g., Ransom v. Administrative Committee, 820 F.Supp. 1429, 1431 (N.D.Ga.1993) (discussing availability of equitable estoppel claim in ERISA ease in section designated as “[pjromissory [e]stoppel [c]laim”); and Bao v. Bank of America, 84 Civ. 6013, 1986 WL 1807 (S.D.N.Y. Feb. 3, 1986), slip op. at 6 (“In order to invoke the doctrine of equitable, dr promissory estoppel, a party must establish four elements.”). Other courts, including the Second Circuit, at times fail to distinguish between the two and simply refer to estoppel in generic terms, when closer scrutiny reveals that the court is actually referring only to equitable, as opposed to promissory estoppel. See, e.g., Lee v. Burkhart, 991 F.2d 1004, 1009-1010 (2d Cir.1993) (referring to the availability of estoppel principles in ERISA eases, but then going on to discuss only elements of equitable estoppel); Ludwig, 838 F.Supp. at 793-796 (same). There is a difference though between the elements necessary to establish a claim for equitable estoppel and those necessary to establish a claim for promissory es-toppel. The elements of an equitable estop-pel claim under ERISA, as interpreted by the Second Circuit are “(1) material representation, (2) rebanee and (3) damage.” Lee v. Burkhart, 991 F.2d at 1009 (citation omitted). A claim for promissory estoppel, on the other hand, requires a showing of “ ‘ ‘a clear and unambiguous promise; a reasonable and foreseeable rebanee by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reason of his rebanee.’ ’ ” Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 73 (2d Cir.1989) (quoting Esquire Radio & Electronics, Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793 (2d Cir.1986) (quoting in turn Restatement (Second) of Contracts § 90 (1981)) (other citation omitted). Additionally, to sustain a claim for promissory estoppel under New York law, a plaintiff must also show that" }, { "docid": "3081356", "title": "", "text": "on February 17, 1995, which represents the following: 1. “All present and former members of that committee have agreed to support the revised slate of nominees for election to Teleeard’s board ... ”; 2. “Both lawsuits brought by the shareholders committee have been dismissed.” In addition, the settlement agreement provides that John Nugent would become Tele-card’s CEO. In anticipation of assuming that role, Mr. Nugent was hired by Telecard as a consultant in January, 1995, and remained in that position until his contract was terminated in mid-March, 1995. The third factor, whether or not the terms of the alleged contract have been agreed upon, weighs in favor of Plaintiffs. The Form 10-Q filed with the SEC represents terms of the agreement that are consistent with those provided for in the signed settlement of terms and the press releases. Additionally in their joint Motion to Vacate Judgment and Opinion, the parties represented to the Court that “on February 15, 1995, a “Settlement Agreement — Summary of Terms” was executed, memorializing the material terms of the settlement.” The agreement referred to in the Motion contains the same terms as the agreement signed by Miller, Legere and Corcoran. This factor weighs in favor of enforcement. The fourth factor is not particularly meaningful in this context, the agreements are in a writing. Furthermore, according to De Mar-tino’s deposition, he as the Independent Committee’s prior counsel believed that they had structured an agreement which is binding upon the Company. In sum, upon consideration of the four factors, a binding preliminary agreement was reached. Alternatively, the agreements are enforceable under principles of promissory estoppel because both parties relied on the validity of the agreements. “In New York, promissory estoppel has three elements: ‘ “a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reasons of his reliance.” ’ ” Arcadian, 884 F.2d at 73, quoting Esquire Radio & Elecs., Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793 (2d Cir.1986), quoting Restatement (Second) of Contracts" }, { "docid": "22418363", "title": "", "text": "stated: “On the facts as I have found them, I concluded not only that SCM breached the agreements reached at the end of 1976, but that it specifically breached its duty of good faith negotiation and performance required by those agreements.” However, our conclusion that no contract existed eliminates this as a possible basis for imposing such a duty on SCM. As the district court recognized, under some circumstances a party to a contract may be bound by an implied agreement to negotiate in good faith to reach an agreement. See Pepsico Co., Inc. v. W.R. Grace & Co., 307 F.Supp. 713, 720 (S.D.N.Y.1969). In this case such an agreement might be inferred from the “agreement in principle.” Compare Thompson v. Liquichimica of America, Inc., 481 F.Supp. 365 (S.D.N.Y.1979). Nevertheless, whatever implied agreement that existed here was too indefinite to be enforceable under New York law. See Joseph Martin, Jr., Delicatessen, Inc. v. Schumaker, 52 N.Y.2d 105, 436 N.Y.S.2d 247, 417 N.E.2d 541 (1981); Candid Productions Inc. v. International Skating Union, 530 F.Supp. 1330 (S.D.N.Y.1982). Consequently, plaintiffs cannot succeed on the theory that they are entitled to damages because defendants breached a “duty to negotiate in good faith”. D. PROMISSORY ESTOPPEL On their cross-appeal, plaintiffs ask us to reverse the district court’s conclusion that they failed to establish promissory estoppel as an alternative basis for recovery. In New York the elements of a claim for promissory estoppel are: “a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reason of his reliance.” Ripple’s of Clearview, Inc. v. LeHavre Associates, 88 A.D.2d 120, 452 N.Y.S.2d 447, 449 (N.Y.App.Div.1982) (citations omitted). In our view the district court correctly ruled that plaintiffs failed to establish a promissory estoppel here. Plaintiffs can neither point to any clear and unambiguous promise made by SCM to the effect that it would consummate the deal, nor show that, they reasonably relied on any promise implied from SCM’s conduct during the negotiations. The negotiations of the parties as" }, { "docid": "2263356", "title": "", "text": "the work that it performed for them—the Deliverables. Consequently, even assuming Hindsight’s work resulted in additional “software savings” for CitiMortgage, Citi-Mortgage was not unjustly enriched at Hindsight’s expense. See Ocean Grp. LLC v. Marcal Mfg., LLC, 09cv7679, 2010 WL 4963155, at *11 (S.D.N.Y. Dec. 2, 2010) (dismissing claim of unjust enrichment based on defendant’s dramatic increase in sales where plaintiff was compensated in accordance with the contract). In fact, as noted above, there is no evidence that Citi enjoyed any “software savings” because of Hindsight’s work. 28. With regard to the audit, Hindsight’s discussion on the one call he had with KPMG was consistent with his defense of his work in deactivating various licenses and indeed, when he transmitted the Deliverables, Hinds had offered to be available to answer any questions or concerns that might arise in future conversations relating to IBM. DX 179; Tr. 869. Accordingly, Citi was not unjustly enriched by not paying Hinds for the defense of his own work which he had offered to provide. 29. In New York, “promissory estoppel has three elements: ‘a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made; and an injury sustained by” the plaintiff. Cyberchron Corp. v. Calldata Sys. Dev., Inc., 47 F.3d 39, 44 (2d Cir.1995) (quoting Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 73 (2d Cir.1989)). 30. The plaintiffs promissory estoppel claim fails. None of the elements has been met. There was no clear and unambiguous promise made outside of the Agreement. There was no reasonable reliance, and there is no evidence of any injury to Hindsight. See, e.g., R.G. Grp., Inc. v. Horn & Hardart Co., 751 F.2d 69, 78-79 (2d Cir.1984) (affirming dismissal ofproim issory estoppel claim based on purported promises made during contract negotiations subject to a final written agreement);Stein v. Gelfand, 476 F.Supp.2d 427, 436 (S.D.N.Y.2007) (dismissing promissory es-toppel claim because plaintiffs reliance on brief conversation as constituting an agreement that left key terms for “future resolution” was manifestly unreasonable). 31. To establish a claim for quantum meruit, the plaintiff must show" }, { "docid": "21550156", "title": "", "text": "the promisee spent money and made improvements to the land in reliance on the oral promise. See Joseph Story, Commentaries on Equity Jurisprudence § 1054 (14th Edition 1918); Lawrence, supra, § 799, at 888-89; see generally Benjamin F. Boyer, Promissory Estoppel: Principle From Precedents: I, 50 Mich.L.Rev. 639, 655 (1952). Thus, the protean doctrine of “promissory estoppel” eludes classification as either entirely legal or entirely equitable, and the historical evidence is equivocal. It is clear, however, that both law and equity exert gravitational pulls on the doctrine, and its application in any particular case depends on the context in which it appears. For example, where a plaintiff sues for contract damages and uses detrimental reliance as a substitute for consideration, the analogy to actions in assumpsit (law) is compelling. By contrast, when the plaintiff uses promissory estoppel to avoid a draconian application of the Statute of Frauds, the pull of equity becomes irresistible. We believe Merex’s invocation of the doctrine more closely resembles the latter than the former. In this case, the alleged commission agreement was certainly supported by adequate consideration, and, consequently, there is no need to rely on notions of detrimental reliance. Merex is seeking to use promissory estoppel to circumvent New York’s Statute of Frauds. When promissory estoppel is utilized in this manner, the claim is more equitable than promissory in nature. See, e.g., Esquire Radio & Elec., Inc. v. Montgomery Ward & Co., 804 F.2d 787, 794 (2d Cir.1986) (“having reneged on its promise to repurchase Esquire’s spare parts inventories ... Ward is equitably estopped from raising the Statute of Frauds”). B. The Nature of the Remedy In its prayer for relief, Merex requested $1,680,000 on its promissory estoppel claim, a sum representing eight percent of the sale price of the two surveillance systems Fair-child sold to the PRC. Thus, Merex sought to recover expectation damages under the alleged oral commission agreement. Because expectation damages for breach of contract are traditionally legal in nature, the pull of law with its attendant right to a jury trial is distinctly felt. See Atlas Roofing Co. v. Occupational Safety" }, { "docid": "18772030", "title": "", "text": "reflected in the Disclosure Statement. Delta’s other actions during the period from August 12 through December 4, 1991 reflect continuing efforts by Delta to work toward the consummation of the proposed Delta investment in Pan Am II (see Section 11(C), supra). X. PLAINTIFFS’ CLAIM FOR PROMISSORY ESTOPPEL (COUNT VII) A. Elements of Claim for Promissory Es-toppel To state a claim for promissory estoppel under New York law, a plaintiff must establish “a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reason of his reliance.” Totalplan Corp. of Am. v. Colborne, 14 F.3d 824, 833 (2d Cir.1994) (citation omitted); see also City of Yonkers v. Otis Elevator Co., 844 F.2d 42, 48-49 (2d Cir.1988). Plaintiffs have not made this showing. In New York, the doctrine of promissory estoppel applies both in situations where there purports to be a signed writing between the parties governing their conduct and in situations where no writing exists. See e.g., Arcadian Phosphates, 884 F.2d at 73-74; Esquire Radio & Electronics, Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793-95 (2d Cir.1986); Cyberchron Corp. v. Calldata Sys. Dev., Inc., 831 F.Supp. 94, 113-15 (E.D.N.Y.1993); P.A. Bergner & Co. v. Martinez, 823 F.Supp. 151, 160-61 (S.D.N.Y. 1993); Marilyn Miglin, Inc. v. Gottex Indus., Inc., 790 F.Supp. 1245, 1251-53 (S.D.N.Y.1992); Triology Variety Stores, Ltd. v. City Prods. Corp., 523 F.Supp. 691, 696-98 (S.D.N.Y.1981). Parol evidence is not admissible to vary or interpret plain and unambiguous terms of a written agreement. Randolitz v. Neptune Paper Prods., 22 N.Y.2d 383, 386-87, 292 N.Y.S.2d 878, 881, 239 N.E.2d 628, 630-31 (1968). “Where the plain writing is inconsistent with the alleged prior oral agreement there is no basis for a claim of an estoppel-” Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 447 (2d Cir. 1985) (quoting Ginsberg v. Fairfield-Noble Corp., 81 A.D.2d 318, 322, 440 N.Y.S.2d 222, 225 [1st Dep’t 1981]). Under New York law, there can be no “clear and unambiguous promise” where the promise is explicitly" }, { "docid": "5300919", "title": "", "text": "power to change his mind and leave all other terms of the contract unaltered and enforceable. If Bergner’s factual allegations are true, Martinez was in breach of his implied covenant of dealing in good faith when he did not inform Bergner that he did not have a present intention to go to work for them at least from July 28, when Martinez’s counsel called to request a postponement of the filing of the motion for approval with the Bankruptcy Court, to August 10, when Bergner was informed that Martinez was going to work for Sears. Columbia Broadcasting Sys., Inc. v. Stokely-Van Camp, Inc., 522 F.2d 369, 378 (2d Cir.1975) (contractual relationship triggers a duty to speak to avoid harm or injury to the other party). Detrimental Reliance Bergner claims that its detrimental reliance on the oral agreement to agree should be used to calculate the correct measure of its damages. Since Martinez’s oral'promise to become the CEO of Bergner does not create an enforceable contract, Bergner’s reliance claim can only be a claim for promissory estoppel. A promisee’s unsolicited reliance upon a promise is not consideration where it is not bargained for. Farnsworth, Contracts, § 2.19 (1982), at 89. Under promissory es-toppel, the reliance itself becomes the grounds for recovery, and the absence of a bargain ceases to be a bar to enforcement or damages. The courts have allowed recovery based solely on reliance only in certain specific circumstances. “In New York, promissory estoppel has three elements: ‘ “a clear and unambiguous promise; a reasonable and. foreseeable reliance by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reasons of his reliance.” ’ ” Arcadian, 884 F.2d at 73, quoting Esquire Radio & Elecs., Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793 (2d Cir.1986), quoting Restatement (Second) of Contracts § 90 (1981); accord, Zucker v. Katz, 708 F.Supp. 525, 533 (S.D.N.Y.1989); Triology Variety Stores, Ltd. v. City Products Corp., 523 F.Supp. 691, 699 (S.D.N.Y.1981); Swerdloff v. Mobil, 74 A.D.2d 258, 427 N.Y.S.2d 266 (2d Dep’t), appeal denied, 50" }, { "docid": "9549095", "title": "", "text": "made as to a material fact which was false and was known to be false at the time it was made, that the misrepresentation was made to induce reliance by the plaintiff and the plaintiff did so rely to his injury. Murray v. Xerox Corp., 811 F.2d 118, 121 (2d Cir.1987). Under New York law, “a failure to perform promises of future acts is not fraud unless there exists an intent not to comply with the promise at the time it is made.” Id. Although discovery is nearly complete, the plaintiff has failed to demonstrate that the defendant never intended to secure a job for the plaintiff within Chase. Evidence of nonperformance of alleged promises is not proof of fraudulent intent. Summary judgment, therefore, would be appropriate if the plaintiffs count four is construed as a claim for negligent misrepresentation. Id. at 122. Consequently, the defendant’s motion for summary judgment on count four of the complaint is granted. C. Promissory Estoppel The plaintiff alleges, in count five of the complaint, that the defendant should be estopped from denying its promises of job security to the plaintiff. Specifically, the plaintiff contends that the defendant’s statements, quoted in part above, constitute specific promises that the defendant may not be heard to deny. Promissory estoppel under New York law requires “(1) a clear and unambiguous promise; (2) a reasonable and foreseeable reliance by the party to whom the promise is made; and (3) an injury sustained by the party asserting the estoppel. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 78 (2d Cir.1984). The statements proffered by the plaintiff are not clear and unambiguous promises justifying the application of promissory es-toppel. Rather, the defendant’s statements, which for the purposes of this motion they do not dispute making, are general assurances of longevity with the company. These statements cannot form the basis of a promissory estoppel. Marine Transport Lines v. International Org. of Masters, Mates & Pilots, 636 F.Supp. 384, 391 (S.D.N.Y.1986) (statements of “we’re partners” and “we look forward to growing together” insufficient to invoke promissory estoppel). Consequently, the defendant’s" }, { "docid": "3081357", "title": "", "text": "The agreement referred to in the Motion contains the same terms as the agreement signed by Miller, Legere and Corcoran. This factor weighs in favor of enforcement. The fourth factor is not particularly meaningful in this context, the agreements are in a writing. Furthermore, according to De Mar-tino’s deposition, he as the Independent Committee’s prior counsel believed that they had structured an agreement which is binding upon the Company. In sum, upon consideration of the four factors, a binding preliminary agreement was reached. Alternatively, the agreements are enforceable under principles of promissory estoppel because both parties relied on the validity of the agreements. “In New York, promissory estoppel has three elements: ‘ “a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reasons of his reliance.” ’ ” Arcadian, 884 F.2d at 73, quoting Esquire Radio & Elecs., Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793 (2d Cir.1986), quoting Restatement (Second) of Contracts § 90 (1981); accord, Bergner v. Martinez, 823 F.Supp. 151, 160 (S.D.N.Y.); Zucker v. Katz, 708 F.Supp. 525, 533 (S.D.N.Y.1989); Triology Variety Stores, Ltd. v. City Products Corp., 523 F.Supp. 691, 699 (S.D.N.Y.1981); Swerdloff v. Mobil, 74 A.D.2d 258, 427 N.Y.S.2d 266 (2d Dep’t), appeal denied, 50 N.Y.2d 913, 409 N.E.2d 995, 431 N.Y.S.2d 523 (1980); D & N Boening, Inc. v. Kirsch Beverages, Inc., 99 A.D.2d 522, 471 N.Y.S.2d 299 (2d Dep’t), aff'd, 63 N.Y.2d 449, 472 N.E.2d 992, 483 N.Y.S.2d 164 (1984). Here, all three elements are present with regard to both settlement agreements. On or about January 19, 1995, Krauth and both members of the Independent Committee signed the Settlement Agreement — Summary of Terms. This agreement sets forth in clear and unambiguous language “the agreed upon summary of the material terms of a Settlement Agreement related to the settlement of all outstanding litigation and disputes involving Executive Teleeard, Ltd.” On the same day, De Martino, in negotiation with Peter J. Anderson, counsel for the remaining members of the SPC, reached an" }, { "docid": "18772031", "title": "", "text": "Arcadian Phosphates, 884 F.2d at 73-74; Esquire Radio & Electronics, Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793-95 (2d Cir.1986); Cyberchron Corp. v. Calldata Sys. Dev., Inc., 831 F.Supp. 94, 113-15 (E.D.N.Y.1993); P.A. Bergner & Co. v. Martinez, 823 F.Supp. 151, 160-61 (S.D.N.Y. 1993); Marilyn Miglin, Inc. v. Gottex Indus., Inc., 790 F.Supp. 1245, 1251-53 (S.D.N.Y.1992); Triology Variety Stores, Ltd. v. City Prods. Corp., 523 F.Supp. 691, 696-98 (S.D.N.Y.1981). Parol evidence is not admissible to vary or interpret plain and unambiguous terms of a written agreement. Randolitz v. Neptune Paper Prods., 22 N.Y.2d 383, 386-87, 292 N.Y.S.2d 878, 881, 239 N.E.2d 628, 630-31 (1968). “Where the plain writing is inconsistent with the alleged prior oral agreement there is no basis for a claim of an estoppel-” Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 447 (2d Cir. 1985) (quoting Ginsberg v. Fairfield-Noble Corp., 81 A.D.2d 318, 322, 440 N.Y.S.2d 222, 225 [1st Dep’t 1981]). Under New York law, there can be no “clear and unambiguous promise” where the promise is explicitly made conditional or contingent on some future event. See In re Gulf Oil/Cities Service Tender Offer Lit., 725 F.Supp. 712, 735 (S.D.N.Y.1989) (“Although plaintiffs would like to pretend the [disclaimers] made in the Offer to Purchase do not exist, promissory estoppel, as an equitable measure, does not allow parties to pick and choose which statements they prefer to hear.”). Any Delta promise to invest in Pan Am II was subject to confirmation of a Pan Am plan of reorganization that was satisfactory to Delta and to various other conditions precedent. Joint Ex. 5 at 6; Joint Ex. 9 at DP016943; Joint Ex. 12 at D378319 and DP378428-29. There was no “clear and unambiguous promise” by any Delta representative that Delta would provide funding to Pan Am II without satisfaction of the conditions precedent. Any reliance by Pan Am or the Creditors Committee on Delta’s alleged oral statements that funding would occur on December 4, 1991 was unreasonable. The Joint Plan and Disclosure Statement, which was filed with the Bankruptcy Court after the alleged conversations relied" }, { "docid": "13995225", "title": "", "text": "of an enforceable contract.”) (quotation marks omitted). “When an enforceable contract does exist, the parties cannot assert a claim for promissory estoppel based on alleged promises that contradict the written contract.” NCC Sunday Inserts, Inc. v. World Color Press, Inc., 759 F.Supp. 1004, 1011 (S.D.N.Y.1991). That is because “where the terms of an unambiguous contract are inconsistent with the statements that form the basis of the claim, the claiming party could not have reasonably relied on those statements as a matter of law.” Randolph Equities LLC, 648 F.Supp.2d at 524 (emphasis in original and quotation marks omitted); see also Thayer v. Dial Indus. Sales, Inc., 85 F.Supp.2d 263, 272 (S.D.N.Y.2000) (“The representations relied upon are also inconsistent with the Employment Agreement in that plaintiff asserts that he was told that he would receive a bonus of sixty to one hundred percent of his salary, whereas the Employment Agreement states that a bonus is in the discretion of the Board of Directors.”); Kaplan v. Capital Co. of Am. LLC, 298 A.D.2d 110, 747 N.Y.S.2d 504, 506 (1st Dep’t 2002) (“Plaintiffs remaining claims ... to recover on theories of ... promissory estoppel are all without merit. Given the circumstance that plaintiff had no contractual right to a bonus and was clearly apprised of, and acknowledged in writing that he understood, the company policy that the payment of bonus compensation was purely discretionary, none of these theories is viable.”). That is true in both of these cases. Both the 2009 Area Manager Plan and the 2009 Branch Manager Plan comprehensively detailed the methodology for what bonuses, if any, Bader and Auerbach would earn. Those plans condition many of the bonus payments at issue here on the fulfillment of various conditions. Accordingly, Bader’s and Auerbach’s allegations of any unconditional oral promises to pay bonuses contradict the express terms of the written agreements governing their incentive compensation. As such, they could not have reasonably relied on any unconditional oral promises to make bonus payments. Their claims for promissory estoppel must therefore be dismissed. D. Labor Law Claims Both Bader and Auerbach also allege claims under" }, { "docid": "22777029", "title": "", "text": "therefore, is that the district court was correct in holding that there is no triable issue concerning plaintiffs’ failure to satisfy the statute of frauds. C. Promissory Estoppel. Plaintiffs also argue for recovery on the basis of promissory estoppel. In New York a claim for promissory estoppel requires “a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reason of his reliance”. Ripple’s of Clearview, Inc. v. Le Havre Associates, 88 A.D.2d 120, 452 N.Y.S.2d 447, 449 (1982) (citation omitted). We agree with the district court that plaintiffs have not shown any triable issue here. Plaintiffs allege that the promise was made to them in the December 3rd telephone conversation; but, as explained above, the entire history of the parties’ negotiations made it plain that any promise or agreement at that time was conditional upon the signing of a written contract. Under those circumstances there never was “a clear and unambiguous promise” to plaintiffs that the development franchise was theirs. Moreover, as the district court found, plaintiffs’ claimed expenditures were made in expectation of, rather than in reliance on, a franchise agreement. Plaintiffs’ counsel admitted in hearings before the district court that “the vast bulk” of plaintiffs’ expenditures were made prior to December 3rd, the date of the alleged promise, and when the district judge pressed for details of expenditures after that date counsel could provide nothing specific. Hence the district court was correct in rejecting the promissory estoppel claim both for lack of a clear promise and for lack, of reliance. III. Conclusion The district court’s judgment is affirmed." }, { "docid": "13565904", "title": "", "text": "would not be entitled to a constructive trust. This is because, according to the defendants, DeGeer is unable to identify a particular res upon which a constructive trust could be placed. In making this assertion, however, the defendants essentially restate their earlier argument— made in connection with DeGeer’s conversion claim — that his bonus did not constitute a specific chattel. DeGeer’s bonus constitutes a sufficiently particular res for purposes of imposing a constructive trust. Accordingly, Count V is dismissed. However, DeGeer is given leave to replead constructive trust as a remedy, rather than as a separate claim for relief. F. Promissory Estoppel In Count VI of his complaint, DeGeer asserts a claim for promissory estoppel. “Generally, courts have used the doctrine of promissory estoppel in order to enforce promises when consideration is lacking, such as in cases involving gratuitous promises, charitable subscriptions, and certain intrafamily promises.” Doyle v. Holy Cross Hosp., 186 Ill.2d 104, 237 Ill.Dec. 100, 708 N.E.2d 1140, 1148 (1999). “However, in recent years, courts have expanded the use of the doctrine to enforce promises underlying otherwise defective contracts and promises made during the course of preliminary negotiations.” Id. “In order to state a claim for promissory estoppel in Illinois, Plaintiff must plead the following elements: (1) an unambiguous promise; (2) reasonable and justifiable reliance by the party to whom the promise was made; (3) the reliance was expected and foreseeable by the promisor; and (4) the promisee relied upon the promise to his or her detriment.” Canadian Pacific Ry. Co. v. Williams-Hayward Protective Coatings, Inc., No. 02 C 8800, 2003 WL 1907943, at *5 (N.D.Ill. April 17, 2003) (quotation marks omitted). The doctrine of promissory estoppel generally does not apply where a contract exists between the parties. All-Tech Telecom, Inc. v. Amway Corp., 174 F.3d 862, 869 (7th Cir.1999) (“Promissory estoppel is meant for cases in which a promise, not being supported by consideration, would be unenforceable under conventional principles of contract law. When there is an express contract governing the relationship out of which the promise emerged, and no issue of consideration, there is no gap" }, { "docid": "2165035", "title": "", "text": "the MTL to $1,000,000. See 831 F.Supp. at 99, 102. Cyberchron argues on appeal that the TLP provides a separate basis for recovery. Call-data responds that this claim was not presented below, but we reject this contention. Among other things, Cyberchron’s witness Paul explicitly testified concerning his view that the TLP provided a basis for recovery if Cyberchron was terminated for any reason. We do not regard the TLP, however, as providing any separate ground for recovery by Cyberchron. The TLP applies, by its terms, only “if this purchase order is terminated,” and accordingly appears to be premised upon the Purchase Order’s initially becoming a valid contract. As the district court correctly concluded, this never occurred because the parties never reached agreement regarding the material terms of weights and weight penalties. Further, the TLP explicitly provided that: “Grumman may, by written notice to [Cyber-chron], unilaterally ... (ii) delete this clause in its entirety.” It is difficult to perceive how Cyberchron could ever place any reasonable reliance upon the TLP in view of this provision, or could reasonably conclude that a unilaterally terminable clause could impose upon Calldata or Grumman an obligation to reimburse Cyberchron’s costs if the negotiations failed. Finally, because agreement was never reached regarding the Purchase Order, of which the TLP was a part, the TLP could only provide a separate basis for recovery under a theory of promissory estoppel. As will appear, however, the first element of promissory estoppel is a clear and unambiguous promise. As the preceding discussion makes clear, the TLP does not satisfy this requirement. B. Promissory Estoppel. “In New York, promissory estoppel has three elements: ‘a clear and unambiguous promise; a reasonable and foreseeable reb-anee by the party to whom the promise is made, and an injury sustained by the party asserting the estoppel by reason of the rebanee.’ ” Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 73 (2d Cir.1989) (quoting Esquire Radio & Elecs., Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793 (2d Cir.1986)); see also Totalplan Corp. of Am. v. Colborne, 14 F.3d 824, 833 (2d Cir.1994);" }, { "docid": "9549096", "title": "", "text": "estopped from denying its promises of job security to the plaintiff. Specifically, the plaintiff contends that the defendant’s statements, quoted in part above, constitute specific promises that the defendant may not be heard to deny. Promissory estoppel under New York law requires “(1) a clear and unambiguous promise; (2) a reasonable and foreseeable reliance by the party to whom the promise is made; and (3) an injury sustained by the party asserting the estoppel. R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 78 (2d Cir.1984). The statements proffered by the plaintiff are not clear and unambiguous promises justifying the application of promissory es-toppel. Rather, the defendant’s statements, which for the purposes of this motion they do not dispute making, are general assurances of longevity with the company. These statements cannot form the basis of a promissory estoppel. Marine Transport Lines v. International Org. of Masters, Mates & Pilots, 636 F.Supp. 384, 391 (S.D.N.Y.1986) (statements of “we’re partners” and “we look forward to growing together” insufficient to invoke promissory estoppel). Consequently, the defendant’s motion for summary judgment on count five of the complaint is granted. D. Intentional Infliction of Emotional Distress In count six, the plaintiff alleges that the defendant is liable for intentional infliction of emotional distress resulting from the “defendant’s handling of plaintiff’s employment termination and its rescission of two accepted employment offers.” Complaint, H 69. The last act alleged by the plaintiff, his discharge, occurred on March 15, 1987. The plaintiff filed his complaint on May 4, 1988. Intentional infliction of emotional distress in New York is governed by a one year statute of limitations. N.Y.Civ.Prac.L. & R. 215. Consequently, the plaintiff’s action was time-barred on March 15, 1988. The plaintiff argues that any violations of corporate policy by Chase are part of a “continuing violation” occurring both within and without the statute of limitations. Alleged policy infractions occurring within the limitations period include the defendant’s failure to offer an available higher level position to the plaintiff and the defendant’s continued hiring of new employees. The plaintiff cites no case authority in support of its" }, { "docid": "22777028", "title": "", "text": "letter itself says that the map is a “rough copy” which must be reviewed. No other writing offered by the plaintiffs gives any precise description of an agreed upon territory. As for the development schedule, the plaintiffs rely on the handwritten notation “5.5 years” that appears in the margin next to a paragraph entitled “Development Schedule and Territory” in the McNeill letter of November 30th. The letter, which is typed, says in that paragraph that no development schedule had been worked out, and it suggests that consideration be given to language providing for a suspension or delay period. Plaintiffs contend that the note “5.5 years” was written by Bojangles’, but even if that is true, there is no way to tell whether it refers to a development period, a suspension period, or a delay period, nor does it explain when any of these periods might begin. In short, this writing does not set out anything clear enough to serve as “complete evidence” of a definite schedule for developing up to twenty different restaurants. Our conclusion, therefore, is that the district court was correct in holding that there is no triable issue concerning plaintiffs’ failure to satisfy the statute of frauds. C. Promissory Estoppel. Plaintiffs also argue for recovery on the basis of promissory estoppel. In New York a claim for promissory estoppel requires “a clear and unambiguous promise; a reasonable and foreseeable reliance by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reason of his reliance”. Ripple’s of Clearview, Inc. v. Le Havre Associates, 88 A.D.2d 120, 452 N.Y.S.2d 447, 449 (1982) (citation omitted). We agree with the district court that plaintiffs have not shown any triable issue here. Plaintiffs allege that the promise was made to them in the December 3rd telephone conversation; but, as explained above, the entire history of the parties’ negotiations made it plain that any promise or agreement at that time was conditional upon the signing of a written contract. Under those circumstances there never was “a clear and unambiguous promise” to plaintiffs that" }, { "docid": "1504521", "title": "", "text": "838 F.Supp. at 793-796 (same). There is a difference though between the elements necessary to establish a claim for equitable estoppel and those necessary to establish a claim for promissory es-toppel. The elements of an equitable estop-pel claim under ERISA, as interpreted by the Second Circuit are “(1) material representation, (2) rebanee and (3) damage.” Lee v. Burkhart, 991 F.2d at 1009 (citation omitted). A claim for promissory estoppel, on the other hand, requires a showing of “ ‘ ‘a clear and unambiguous promise; a reasonable and foreseeable rebanee by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reason of his rebanee.’ ’ ” Arcadian Phosphates, Inc. v. Arcadian Corp., 884 F.2d 69, 73 (2d Cir.1989) (quoting Esquire Radio & Electronics, Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793 (2d Cir.1986) (quoting in turn Restatement (Second) of Contracts § 90 (1981)) (other citation omitted). Additionally, to sustain a claim for promissory estoppel under New York law, a plaintiff must also show that he “ ‘suffered unconscionable injury.’ ” Schwartz v. Newsweek, Inc., 653 F.Supp. 384, 389 n. 1 (S.D.N.Y.1986), affd on other grounds, 827 F.2d 879 (2d Cir.1987). In the present case, broadly construing plaintiffs complaint, the court wib assume that he is relying upon the doctrines of both equitable and promissory estoppel. The issue thus becomes whether under ERISA he is entitled to rely upon those estoppel doctrines, or whether, as the PBA suggests, ERISA preempts altogether an estoppel based cause of action. If the PBA is correct, then obviously the court’s inquiry would end and the PBA would be entitled to summary judgment on plaintiffs first cause of action for “estoppel.” B. ERISA Preemption At the outset, there are several relevant undisputed facts as to the status of the PBA and its group life insurance program which must be noted. First, there is no question that the PBA is an “employee organization” within the meaning of ERISA, 29 U.S.C. § 1002(4), and the PBA admits that. Memorandum of Law in Support of Defendant’s Motion for" }, { "docid": "5300920", "title": "", "text": "estoppel. A promisee’s unsolicited reliance upon a promise is not consideration where it is not bargained for. Farnsworth, Contracts, § 2.19 (1982), at 89. Under promissory es-toppel, the reliance itself becomes the grounds for recovery, and the absence of a bargain ceases to be a bar to enforcement or damages. The courts have allowed recovery based solely on reliance only in certain specific circumstances. “In New York, promissory estoppel has three elements: ‘ “a clear and unambiguous promise; a reasonable and. foreseeable reliance by the party to whom the promise is made; and an injury sustained by the party asserting the estoppel by reasons of his reliance.” ’ ” Arcadian, 884 F.2d at 73, quoting Esquire Radio & Elecs., Inc. v. Montgomery Ward & Co., 804 F.2d 787, 793 (2d Cir.1986), quoting Restatement (Second) of Contracts § 90 (1981); accord, Zucker v. Katz, 708 F.Supp. 525, 533 (S.D.N.Y.1989); Triology Variety Stores, Ltd. v. City Products Corp., 523 F.Supp. 691, 699 (S.D.N.Y.1981); Swerdloff v. Mobil, 74 A.D.2d 258, 427 N.Y.S.2d 266 (2d Dep’t), appeal denied, 50 N.Y.2d 913, 409 N.E.2d 995, 431 N.Y.S.2d 523 (1980); D & N Boening, Inc. v. Kirsch Beverages, Inc., 99 A.D.2d 522, 471 N.Y.S.2d 299 (2d Dep’t), aff'd, 63 N.Y.2d 449, 472 N.E.2d 992, 483 N.Y.S.2d 164 (1984). Martinez alleges that the injury must be “unconscionable injury” in order to state a claim for promissory estop-pel, and that Bergner’s additional contract negotiations and the delay caused by the new search for a CEO does not amount to “unconscionable injury.” The actual language of the cases simply indicates that where it would be “unconscionable” not to enforce a clear and ambiguous promise, the courts will do so. The injury itself does not have to be labeled “unconscionable” as long as the other party is injured as the result of its reliance. Arcadian, 884 F.2d at 73; Triology, 523 F.Supp. at 696-97; James King & Son, Inc. v. DeSantis Construction No. 2 Corp., 97 Misc.2d 1063, 413 N.Y.S.2d 78, 81 (Sup.Ct.1977). Bergner has alleged all the elements of promissory estoppel. Bergner has alleged a clear and unambiguous promise" } ]

[ { "docid": "21319563", "title": "", "text": "PER CURIAM. Appellants, owners of the Hotel Utica in Utica, New York, brought action in the United States District Court for the Northern District of New York against federal and local agencies and officials, seeking to enjoin a nearby urban redevelopment project in which transient housing units competing with the hotel are included. The District Court, James T. Foley, Chief Judge, granted a motion to dismiss the complaint and amended complaint as to the federal agency and its national and regional administrators, and the hotel owners appeal. We find no error and affirm the order of dismissal. Assuming arguendo, that order is appealable even though it affected only some of the parties defendant, the dismissal must be upheld in any event because plaintiffs lacked standing to sue, whether as taxpayers or as persons who may sustain economic loss through competition. As this court held in Taft Hotel Corp. v. Housing and Home Finance Agency, 262 F.2d 307, 2 Cir., 1958, “Economic loss stemming from lawful competition, even though made possible by federal aid, is damnum absque injuria.” Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938), Perkins v. Lukens Steel Co, 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940). Appellants attempt to distinguish the Taft Hotel case on the claim that the 1959 amendment to the Housing Act, 42 U.S.C. § 1456(g), gave them the requisite standing. There is, however, no indication either in the language of the amendment or in the legislative history of any such intent. Section 1456(g) is an apt provision to safeguard the predominantly residential character of urban renewal projects and to insure that the limited Federal funds available for assistance to such projects shall not be expended for commercial hotels if they are not needed. There are instances where an individual has no legal remedy even though a federal law affecting his interests may have been violated. Some statutes create merely public rights, enforceable only by the agency charged with their administration. Local 282, etc. v. NLRB, 2 Cir, 1964, 339 F.2d 795; Fafnir Bearing Co. v." } ]

[ { "docid": "16944932", "title": "", "text": "supreme.” Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 78 S.Ct. 752; United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252; United States v. George S. Bush & Co., 310 U.S. 371, 380, 60 S.Ct. 944, 84 L.Ed. 1259. United States v. Wiley’s Cove Ranch, 8 Cir., 295 F.2d 436; Duba v. Schuetzle, 8 Cir., 303 F.2d 570; Kansas City Power & Light Co. v. McKay, supra; R E A v. Central Louisiana Electric Co., supra. The promulgation of the regulations in question unequivocally demonstrates that the Administrator relies upon Congressional guidance and sanction. Although we doubt that Congress and the Comptroller General will desire to review every loan made by the REA they do possess the machinery and the ability for review, as in the instant case, where the parties are in good faith in attempting to reach a meeting of the minds. Under the facts presented here notwithstanding the regulations, the character of the agency action involved falls short of presenting a justiciable controversy. The preliminary restraining order entered on June 27, 1966, should be dissolved by the District Court and the appellees’ case dismissed for lack of jurisdiction. Reversed in accordance with the opinion. . Appellee alleges jurisdiction under the following: (1) 28 U.S.C. § 1361 (Mandamus) (2) 5 U.S.C. § 1009 (Adm.Proc.Act) (3) 28 U.S.C. § 2201 (Declaratory Judgments) (4) 28 U.S.C. § 1331, § 1391 (Federal Question) . See n. 24, infra. . A summary of the regulations (REA Bulletin 111-3) 29 Ped.Reg. 2765-6, demonstrates first a general policy statement regarding loans: A. To seek more advantageous power supply arrangements to accomplish objectives of REA. B. To conserve REA loan funds. C. Surveys to assure review and closer cooperation between REA and electrical power suppliers. (1) Power supply surveys: (a) Borrower can request power supply survey. (b) Conduct of survey — if Administrator determines to undertake it, adequate review of applicants power supply problems and needs must be made. Where Administrator finds proposed contracts with power suppliers unreasonable for purposes of REA, the supplier will be advised wherein they are unreasonable, and" }, { "docid": "22067188", "title": "", "text": "See Scenic Hudson Preservation Conference v. F. P. C., 354 F.2d 608, 615-617 (2 Cir. 1965), cert. denied Consolidated Edison Co. of New York, Inc. v. Scenic Hudson Preservation Conference, 384 U.S. 941, 86 S.Ct. 1462, 16 L.Ed.2d 540 (1966); Office of Communication of United Church of Christ v. F. C. C., 359 F.2d 994, 1000-1006 (D.C.Cir. 1966). See generally Reich, The Law of the Planned Society, 75 Yale L..T. 1227 (1966). . It has been pointed out that where Congress intends that administrative determinations under the Act may be un-reviewable, it has said so explicitly: under section 114 of the Act, added in 1964, 78 Stat. 788-90, as amended 42 U.S.C. § 1465(e) (Supp. 1967),-determinations with regard to relocation assistance payments may be made unreviewable. Note, 77 Yale L.J. 966, 972 n. 28 (1968). . S.ee text following note 14, supra. . The provisions of the Administrative Procedure Act on scope of judicial review are set out in 5 U.S.C. § 706. We note that the plaintiffs are requesting review of a substantive determination, rather than of the procedures followed by HUD in making the determination\" sought to be reviewed. . We have discussed other aspects of the Green Street decision in part I of this opinion. . Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Berry v. Housing and Home Finance Agency, 340 F.2d 939 (2 Cir. 1965); Taft Hotel Corp. v. Housing and Home Finance Agency, 262 F.2d 307 (2 Cir. 1958), cert. denied 359 U.S. 967, 79 S.Ct. 880, 3 L.Ed.2d 835 (1959); Pennsylvania Railroad Company v. Dillon, 335 F.2d 292 (D.C.Cir.), cert. denied American-Hawaiian S. S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964); Allied-City Wide v. Cole, 97 U.S.App. D.C. 277, 230 F.2d 827 (1956); Kansas City Power & Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955); Pittsburgh Hotels Association, Inc. v. Urban Redevelopment Authority of Pittsburgh, 309 F.2d 186 (3 Cir. 1962), cert. denied Hilton Hotels Corp." }, { "docid": "16944931", "title": "", "text": "92 L.Ed. 568. tW Appellees submit that appellants' procedural efforts were arbitrary, capricious and illegal. Assuming they were, appellees cannot succeed in doing indirectly that which they concede they cannot do directly, to-wit, enjoin the loan. Congress has steadfastly refused to provide judicial review under 7 U.S.C. § 901 of the REA Act. This silence could be premised on the concern that the private supplier could otherwise interfere with REA loans in each instance where the Administrator finds the public suppliers proposal unreasonable. The studied expértise of the Administrator, the Comptroller General and Congress as to comparative cost studies, efficiency, flexibility and overall utility should remain in their capable hands and not the courts. The decisions entail engineering know-how and accounting procedures which the executive and legislative branches of government are better equipped to handle than the judiciary. The exercise of judgment by the Administrator, Congress or the Comptroller General invokes far more than performing a ministerial act. We are concerned with an area of the law “where generally the Executive and the Legislative are supreme.” Panama Canal Co. v. Grace Line, Inc., 356 U.S. 309, 78 S.Ct. 752; United States v. Carmack, 329 U.S. 230, 67 S.Ct. 252; United States v. George S. Bush & Co., 310 U.S. 371, 380, 60 S.Ct. 944, 84 L.Ed. 1259. United States v. Wiley’s Cove Ranch, 8 Cir., 295 F.2d 436; Duba v. Schuetzle, 8 Cir., 303 F.2d 570; Kansas City Power & Light Co. v. McKay, supra; R E A v. Central Louisiana Electric Co., supra. The promulgation of the regulations in question unequivocally demonstrates that the Administrator relies upon Congressional guidance and sanction. Although we doubt that Congress and the Comptroller General will desire to review every loan made by the REA they do possess the machinery and the ability for review, as in the instant case, where the parties are in good faith in attempting to reach a meeting of the minds. Under the facts presented here notwithstanding the regulations, the character of the agency action involved falls short of presenting a justiciable controversy. The preliminary restraining order entered on" }, { "docid": "13659713", "title": "", "text": "Administrative Procedure Act, [5 U.S.C.A. § 1009 (a)]. The Court reviewed the legislative history of the Act, rejected contentions that the companies had suffered “legal wrong” or were “adversely affected or aggrieved” within the meaning of the statute, and ordered the complaint dismissed. See, Duba v. Schuetzle, 303 F.2d 570 (8th Cir. 1962); Harrison-Halsted Community Group v. Housing & Home Finance Agency, 310 F.2d 99 (7th Cir. 1962). In our view, appellants have shown neither a legal wrong nor a legal right to be free of the effects they attribute the determinations complained of will have upon their businesses. To support standing to sue under Sec. 10 (a) of the Act it is not enough for appellants to show that they have been “adversely affected or aggrieved”. In addition, there must be a showing of adverse effect or aggrievement “within the meaning of an^ relevant statute.” Kansas City Power and Light Co. v. McKay, supra. The assertion by appellants in their closing brief that the administrative determinations constitute “a violation of the due process and equal protection clauses of the United States Constitution” is not such a showing. No allegation of state action (14th Amendment) is made in the complaint nor is it alleged that appellants have been “deprived of life, liberty, or property” (5th Amendment). Indeed, on the basis of the undisputed facts here none could be soundly made. We believe appellants’ single authority, Amalgamated Meat Cutters & Butcher Workmen of North America, AFL-CIO v. Rogers, 186 F.Supp. 114 (D.C.D.C. 1960) to be unpersuasive as did the District of Columbia Circuit in Texas State AFL-CIO v. Kennedy, supra, footnote 3. We therefore conclude that the growers’ allegations are insufficient to show that they have suffered a “legal wrong” or that they have been “adversely affected or aggrieved * * * within the meaning of any relevant statute”, and that as a necessary result, they are without standing to sue. A further contention of the growers, not considered in the foregoing opinion, should be mentioned. This contention relates only to those growers who were determined by appellees not to be" }, { "docid": "16944921", "title": "", "text": "the administrative burden of decision. * * * » A. Standing by “public interest”. Although concepts of standing, judicial reviewability and justiciable controversy are intermingled in the area of administrative review, our analyses compels reversal under any or all of these jurisdictional bases. Appellees' brief well demonstrates isolated statements and cases dealing with agency review are not all simply reconciled. However, distinguishing factors become readily apparent in review of the myriad of cases. The Rural Electrification Administration’s powers are all exercised by the Administrator under the supervision of the Secretary of Agriculture. 7 U.S.C. § 901. The Administrator, in §§ 902 and 904, is “authorized and empowered to make loans” for the development of rural areas deficient in rural electrification. Under the same or similar statutory authority appellees readily recognize that the interest of the economic competitor is not sufficient standing to challenge the authority or discretion of the Administrator to make loans. Alabama Power Company v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374; Tennessee Electric Power Co. v. T. V. A., 306 U. S. 118, 59 S.Ct. 366, 83 L.Ed. 543; Duke Power Co. v. Greenwood, 302 U.S. 485, 58 S.Ct. 306, 82 L.Ed. 381; Kansas City Power & Light Co. v. McKay, 96 U.S. App.D.C. 273, 225 F.2d 924, cert. den. 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780; Rural Electrification Administration v. Central Louisiana Electric Co., 5 Cir., 354 F.2d 859; Alabama Power Co. v. Alabama Electric Coop., Inc., M.D.Ala.N.D., 1965, 249 F.Supp. 855. Nor did passage of the Administrative Procedure Act create legal rights which otherwise did not exist. The Supreme Court has long recognized that an “enforceable right” must be more than “a common concern for obedience to law.” Singer & Sons v. Union Pac. R. R. Co., 311 U.S. 295 at 304, 61 S.Ct. 254 at 258, 85 L.Ed. 198. Nor is standing given to the appellees as representing “the public interest” analogous to F. C. C. v. Sanders Brothers Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869. Some interpretations of Sanders make the area confusing and" }, { "docid": "7114492", "title": "", "text": "to abandon any of their activities or to forego the expansion programs planned by them. They have not been subjected to any obligation or duty. Their sole interest and objective is to eliminate the competition which they fear. Controlling decisions of the Supreme Court, dealing with other electric power con tracts of the Federal Government, establish that an interest of this kind is not sufficient to enable them to sue to enjoin execution of the power contracts and program of the Government. * * * ” There have been numerous efforts since Kansas City Power & Light Co. v. McKay, supra, by public utilities such as the Alabama Power Company to distinguish cases that are factually the same as the case now presented to this Court from the Kansas City Power & Light Co. v. McKay doctrine. In this connection, see Iowa-Illinois Gas and Electric Company v. Benson, et al., 247 F.2d 22, cert, denied, 356 U.S. 949, 78 S.Ct. 913, 2 L. Ed.2d 842, and Pennsylvania R. Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292, cert, denied, American-Hawaiian S. S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543. In each instance where the public utility claimed a competitive injury, as the Alabama Power Company does in this case, and sought to base its standing for judicial relief on either the Administrative Procedures Act, the allegation that the action of the REA was arbitrary and capricious, that the action in securing contracts for the purpose of guaranteeing the repayment of the loan constituted a restraint of trade in violation of the Sherman Antitrust Act and the Clayton Act, or that the action of the officials of the REA and the cooperatives securing the loan constituted an illegal combination or conspiracy, such contentions have been fully dealt with by the courts concerned and found to be without merit. Kansas City Power & Light Co. v. McKay, supra; Alabama Power Company v. Iekes, supra; Tennessee Electric Power Company v. T. V. A., supra; Duke Power Company v. Greenwood, supra; Iowa-Illinois Gas and Electric Company v. Benson, et" }, { "docid": "13445306", "title": "", "text": "any statutory right to judicial review. That is to say, the National Bank Act does not have within itself any provisions for court review, such for instance as the Internal Revenue Code or the Interstate Commerce Act, and it is clear that the Administrative Procedure Act does not and did not append such in effect to this Act so as to create a specific provision for judicial review. There is a long and well established line of judicial authority holding that plaintiffs whose only injury is loss due to competition lack standing to maintain legal action to redress their economic injury. These decisions hold that mere competitive injury even though resulting from governmental action does not give standing to a person so injured to seek relief in the courts. Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S. Ct. 300, 82 L.Ed. 374 (1938); Tennessee Electric Power Co. v. T. V. A., 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939); Perkins v. Lukens Steel Co., 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108 (1940); Kansas City Power & Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924 (1955), cert. denied 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955); Texas State AFL-CIO v. Kennedy, 117 U.S.App.D.C. 343, 330 F.2d 217 (1964); Benson v. Schofield, 98 U.S.App.D.C. 424, 236 F.2d 719 (1956), cert. denied 352 U.S. 976, 77 S.Ct. 363, 1 L.Ed.2d 324; United Milk Producers of New Jersey v. Benson, 96 U.S.App.D.C. 227, 225 F.2d 527 (1955); Pennsylvania Railroad Co. v. Dillon, 118 U.S.App.D.C. 257, 335 F.2d 292 (1964); Rural Electrification Admin. v. Central Louisiana Elec. Co., 354 F.2d 859 (5th Cir. 1966). So in Tennessee Electric Power Co. v. T. V. A., 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939), the court laid down the rule that one threatened with injury by governmental action may not contest such in the courts “unless the right invaded is a legal right, — one of property, one arising out of contract, one protected against tortious invasion, or one founded on a statute which confers" }, { "docid": "16944941", "title": "", "text": "Procedure Act was not designed to and in fact has not changed the basic principle that one must have suffered a legal wrong in order to have standing to challenge programs administered by governmental agencies. The scope of review under § 10(a) of the Act, 5 U.S.C.A. § 1009(a) was reviewed and considered at length in Kansas City Power & Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. den. 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780, where private electric power companies sought to enjoin federal officers and agencies from carrying out a federally supported power program, alleging loss from unlawful competition from Government contracts. The court, at pages 932, 933, of 225 F.2d, considered the history of the Act, observing that in the view of the attorney general, § 10(a) preserved the rules developed by the courts in such cases as Alabama Power Co. v. Ickes, supra, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374; Commonwealth of Massachusetts v. Mellon, supra, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed. 1078; Perkins v. Lukens Steel Co., supra, 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108, and ruled that plaintiff companies gained no standing to sue by reason of the Act. See also Ove Gustavsson Con tracting Company v. Floete, 2 Cir., 278 F.2d 912, 914, cert. den. 364 U.S. 894, 81 S.Ct. 225, 5 L.Ed.2d 188.” See Jaffe, The Right to Judicial Review II, 71 Harv.L.Rev. 769 at 790, “The Administrative Procedure Act has had a negligible effect on the basic right to judicial review. * * * ” See also Braude v. Wirtz, 9 Cir. 1965, 350 F.2d 702, at 707, where the court pointed out, to support standing to sue under § 10 (a) of the Act it is not enough for appellants to show that they have been “adversely affected or aggrieved.” In addition, there must be a showing of adverse effect or aggrievement under “a relevant statute.” In the Braude case a regulation promulgated by the Administrator of the Bureau of Employment Security was claimed to have been violated. The" }, { "docid": "13659712", "title": "", "text": "enforcement of the immigration laws have illegally permitted them to enter and to work here — this is not enough to give the plaintiffs-appellants standing to sue ■ the defendant officials for declaratory and injunctive relief. Congress has not given them any such standing by express or implied provision of statute — either in the immigration laws or in any other act. Absent such a congressional grant, mere economic competition made possible by governmental action (even if allegedly illegal) does not give standing to sue in the courts to restrain such action.” (Citations omitted.) In Kansas City Power and Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924 (1955), certain private utility companies brought suit under the Declaratory Judgments Act to enjoin federal officers and agencies from carrying out a federally supported power program. It was there alleged that said program was in violation of law and that severe competition would result in economic injury to the companies. The companies based their right to bring the action, in part, on Section 10(a) of the Administrative Procedure Act, [5 U.S.C.A. § 1009 (a)]. The Court reviewed the legislative history of the Act, rejected contentions that the companies had suffered “legal wrong” or were “adversely affected or aggrieved” within the meaning of the statute, and ordered the complaint dismissed. See, Duba v. Schuetzle, 303 F.2d 570 (8th Cir. 1962); Harrison-Halsted Community Group v. Housing & Home Finance Agency, 310 F.2d 99 (7th Cir. 1962). In our view, appellants have shown neither a legal wrong nor a legal right to be free of the effects they attribute the determinations complained of will have upon their businesses. To support standing to sue under Sec. 10 (a) of the Act it is not enough for appellants to show that they have been “adversely affected or aggrieved”. In addition, there must be a showing of adverse effect or aggrievement “within the meaning of an^ relevant statute.” Kansas City Power and Light Co. v. McKay, supra. The assertion by appellants in their closing brief that the administrative determinations constitute “a violation of the due process and" }, { "docid": "16944942", "title": "", "text": "1078; Perkins v. Lukens Steel Co., supra, 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108, and ruled that plaintiff companies gained no standing to sue by reason of the Act. See also Ove Gustavsson Con tracting Company v. Floete, 2 Cir., 278 F.2d 912, 914, cert. den. 364 U.S. 894, 81 S.Ct. 225, 5 L.Ed.2d 188.” See Jaffe, The Right to Judicial Review II, 71 Harv.L.Rev. 769 at 790, “The Administrative Procedure Act has had a negligible effect on the basic right to judicial review. * * * ” See also Braude v. Wirtz, 9 Cir. 1965, 350 F.2d 702, at 707, where the court pointed out, to support standing to sue under § 10 (a) of the Act it is not enough for appellants to show that they have been “adversely affected or aggrieved.” In addition, there must be a showing of adverse effect or aggrievement under “a relevant statute.” In the Braude case a regulation promulgated by the Administrator of the Bureau of Employment Security was claimed to have been violated. The court refused review, since appellees could show no legal wrong. . Appellees reliance upon the American President Lines v. Federal Maritime Board is misplaced. Argument was therein made that the doctrine of Alabama Power Co. v. Ickes, supra, is not applicable to proceedings under the Administrative Procedure Act. This case is disapproved in its own circuit, Kansas City Power & Light Co. v. McKay, 225 F.2d 924, at 932. This viewpoint is not shared by others: Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, at 152-153, 71 S.Ct. 624, 95 L.Ed. 817 (concurring opinion); Duba v. Schuetzle, 303 F.2d 570; REA v. Central La. Elec. Co., supra; Berry v. Housing and Home Financing Agency, 2 Cir. 1965, 340 F.2d 939; Pennsylvania R. Co. v. Dillon, 1964, 118 U.S.App.D.C. 257, 335 F.2d 292; Pittsburg Hotels Assoc. v. Urban Redevelopment Auth., 3 Cir., 309 F.2d 186; Harrison Halsted Commun. Group, Inc. v. Housing and Home Finance Agency, 7 Cir., 310 F.2d 99, cert. den. 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 414. . Appellees state: “" }, { "docid": "16944943", "title": "", "text": "court refused review, since appellees could show no legal wrong. . Appellees reliance upon the American President Lines v. Federal Maritime Board is misplaced. Argument was therein made that the doctrine of Alabama Power Co. v. Ickes, supra, is not applicable to proceedings under the Administrative Procedure Act. This case is disapproved in its own circuit, Kansas City Power & Light Co. v. McKay, 225 F.2d 924, at 932. This viewpoint is not shared by others: Joint Anti-Fascist Committee v. McGrath, 341 U.S. 123, at 152-153, 71 S.Ct. 624, 95 L.Ed. 817 (concurring opinion); Duba v. Schuetzle, 303 F.2d 570; REA v. Central La. Elec. Co., supra; Berry v. Housing and Home Financing Agency, 2 Cir. 1965, 340 F.2d 939; Pennsylvania R. Co. v. Dillon, 1964, 118 U.S.App.D.C. 257, 335 F.2d 292; Pittsburg Hotels Assoc. v. Urban Redevelopment Auth., 3 Cir., 309 F.2d 186; Harrison Halsted Commun. Group, Inc. v. Housing and Home Finance Agency, 7 Cir., 310 F.2d 99, cert. den. 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 414. . Appellees state: “ * * * this action is one to compel the performance of a duty in compliance with regulation, and not one to influence the ultimate decision of the agency. The case seeks compliance with law and regulation, not control of discretion.” (Appellees’ Brief, p. 49). . Appellees reliance on the language of the Kansas City Power case, suggesting standing where “regulatory action” by the government is involved is ineffective. The “regulatory action” to which reference is made, concerns “situations” such as Sanders under the F.T.C. or any other administrative body regulating rates, licenses, charters, et al. Appellees distinguish the Cleco case, 5 Cir., 354 F.2d 854, since it dealt with the regulations only collaterally. Actually the Fifth Circuit was faced with the identical regulations and arguments as in the instant case. The court therein briefly disposed of the regulations without the apparent difficulty that we have encountered. It is true there were additional claims raised in the complaint, i. e., violation of Antitrust Law, illegal competition and constitutional claims under the Fifth Amendment. • However," }, { "docid": "16944940", "title": "", "text": "basis for cancellation of the license of a station if it renews its contract with appellant.” 316 U.S.’ at 422, 62 S.Ct. at 1202. . This is the same error pursued by the District Court in Schuetzle v. Duba, 201 F.Supp. 754, at 758, reversed by this court in 303 F.2d 570. . Perhaps the most realistic balance to judicial review as to administrative conduct even under the Administrative Procedure Act, is found in Switchmen’s Union of North America v. National Mediation Board, 320 U.S. 297, 301, 64 S.Ct. 95, 97, 88 L.Ed. 61, a pre-APA case: “Generalizations as to when judicial review of administrative action may or may not be obtained are of course hazardous. Where Congress has not expressly authorized judicial review, the type of- problem, involved and the history of the statute in question become highly relevant in determining whether judicial review may be nonetheless supplied.” (Our emphasis). . As this court pointed out in Duba v. Sehuetzle, 303 F.2d 570, at 574: “It has also been judicially determined that the Administrative Procedure Act was not designed to and in fact has not changed the basic principle that one must have suffered a legal wrong in order to have standing to challenge programs administered by governmental agencies. The scope of review under § 10(a) of the Act, 5 U.S.C.A. § 1009(a) was reviewed and considered at length in Kansas City Power & Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. den. 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780, where private electric power companies sought to enjoin federal officers and agencies from carrying out a federally supported power program, alleging loss from unlawful competition from Government contracts. The court, at pages 932, 933, of 225 F.2d, considered the history of the Act, observing that in the view of the attorney general, § 10(a) preserved the rules developed by the courts in such cases as Alabama Power Co. v. Ickes, supra, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374; Commonwealth of Massachusetts v. Mellon, supra, 262 U.S. 447, 43 S.Ct. 597, 67 L.Ed." }, { "docid": "22067148", "title": "", "text": "burden of future taxation and thereby take her property without due process of law.” 262 U.S. at 486, 43 S.Ct. at 600. The burden of future taxation was held to be essentially a matter of public, not individual, concern. Even where a plaintiff hps a personal stake in the outcome of a case, he may be denied standing to sue on the ground that the right which he is attempting to assert is not one which the courts will recognize. Thus, one cannot as a general matter object to governmental action on the basis that it aids one’s competitors, for it is said that no legal wrong results from lawful competition. Alabama Power Co. v. Ickes, 302 U.S. 464, 468-469, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Kansas City Power & Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955). This court has, accordingly, refused to grant standing to plaintiffs who object to urban renewal planning on this basis. Taft Hotel Corp. v. Housing and Home Finance Agency, 262 F.2d 307 (2 Cir. 1958), cert. denied 359 U.S. 967, 79 S.Ct. 880, 3 L.Ed.2d 835 (1959); Berry v. Housing and Home Finance Agency, 340 F.2d 939 (2 Cir. 1965). Harrison-Halsted Community Group, Inc. v. Housing and Home Finance Agency, 310 F.2d 99 (7 Cir. 1962), cert. denied 373 U.S. 914, 83 S.Ct. 1297, 10 L.Ed.2d 414 (1963), relied on by the District Court, is similar to Taft and Berry. Plaintiffs there sought to bar the acquisition and clearing, under an urban renewal program, of an area in Chicago for the use of the University of Illinois. They alleged that they would suffer economic injury if the plan were carried out, and that some of them had relied on past promises and representations of government officials in connection with previously announced plans for residential and commercial development in the area. The court held that it. did not appear that any of the plaintiffs’ “private legal rights” had been violated. The plaintiffs in the case before us are in" }, { "docid": "6957132", "title": "", "text": "out verbatim in an appendix to this opinion. I Under Section 10(a) of the Administrative Procedure Act, 5 U.S.C.A. § 1009, it seems to be settled in a ease of this kind that if Congress has failed to give an appellant standing to sue by express or implied provisions of statute * * * mere economic competition made possible by governmental action (even if allegedly illegal) does not give standing to sue to restrain such action. Pennsylvania Railroad Company v. Dillon, 1964, 118 U.S.App.D.C. 257, 335 F.2d 292, citing Tennessee Electric Power Company v. Tennessee Valley Authority, 306 U.S. 118, 59 S.Ct. 366, 83 L.Ed. 543 (1939); Alabama Power Company v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Kansas City Power and Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955); and Texas State AFL-CIO v. Kennedy, 117 U.S. App.D.C. 343, 330 F.2d 217 (1964). On December 14, 1964, the Supreme Court denied certiorari in the Pennsylvania Railroad case sub. nom. American-Hawaiian Steamship Company v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543. This was two weeks after the granting of the preliminary injunction in the instant case, which issued on December 1, 1964. From the foregoing, we are of the opinion that the correct decision of this appeal is to be found in the answers to the following questions: 1. Does this case raise anything more than “mere economic competition made possible by governmental action” ? 2. If not, has Congress, expressly or by implication, given appellees standing to sue under the terms of the Rural Electrification Act of 1936, 49 Stat. 1363, 7 U.S.C.A. § 901 et seq.? 3. Has Congress, expressly or by implication, conferred jurisdiction on the Courts to review the granting or denial of a proposed REA loan ? In view of the effort to invoke Amendment 5 of the Constitution, we add a fourth question: Have appellees shown any legally protected property right to be free of competition from the prospective borrower? In answering these" }, { "docid": "23469929", "title": "", "text": "Administrative Procedure Act, 5 U.S.C. §§ 701-706, and particularly Section 702, aid the appellee here. Judge Burger, now Mr. Chief Justice Burger, in a concurring opinion in National Association of Securities Dealers, Inc. v. SEC, 136 U.S.App.D.C. 241, 420 F.2d 83, 101 (1969), cert. granted, 397 U.S. 986, 90 S.Ct. 1114, 25 L.Ed.2d 394 (1970) , commented that the above section broadened the basis of standing, as follows: “Appellees also assert that § 702(a) (Supp. II, 1967), embodies an independent and self-sufficient statutory basis for standing. I do not feel that the APA was meant to arrest the development of the law of standing as of the date of its passage: ‘[W]e would certainly be prepared to hold in an appropriate case that one who complains of administrative action may find a remedy under the Act beyond the strict scope of judicial review recognized prior to its adoption * * > “Kansas City Power & Light Co. v. McKay, 96 U.S.App.D.C. 273, 282, 225 F.2d 924, 933, cert. denied, 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955). Nevertheless, although the review provisions of the APA were not meant to retard the judicial development and adaptation of the law of standing, it does not establish an independent right to review absent judicially articulated notions of ‘legal wrong’ of ‘adversely affected or aggrieved * * * within the meaning of any relevant statute.’ See Pennsylvania R.R. Co. v. Dillon, supra note 2 [118 U.S.App.D.C. 257, 335 F.2d 292].” 420 F.2d at 104 n.5. (Emphasis supplied). In almost every carefully-considered case where standing is sustained it is apparent in the facts or in the opinion that when the situation of the plaintiff is examined there is an element of legal wrong being inflicted upon him or he is adversely affected by agency action or aggrieved within the meaning of a relevant statute. That adverse effect, of course, need not be economic but, as the Supreme Court has recently observed, may be aesthetic, conservational or recreational. Data Processing, supra, 397 U.S. at 154, 90 S.Ct. 827. It is this element which appellee" }, { "docid": "22067189", "title": "", "text": "rather than of the procedures followed by HUD in making the determination\" sought to be reviewed. . We have discussed other aspects of the Green Street decision in part I of this opinion. . Alabama Power Co. v. Ickes, 302 U.S. 464, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Berry v. Housing and Home Finance Agency, 340 F.2d 939 (2 Cir. 1965); Taft Hotel Corp. v. Housing and Home Finance Agency, 262 F.2d 307 (2 Cir. 1958), cert. denied 359 U.S. 967, 79 S.Ct. 880, 3 L.Ed.2d 835 (1959); Pennsylvania Railroad Company v. Dillon, 335 F.2d 292 (D.C.Cir.), cert. denied American-Hawaiian S. S. Co. v. Dillon, 379 U.S. 945, 85 S.Ct. 437, 13 L.Ed.2d 543 (1964); Allied-City Wide v. Cole, 97 U.S.App. D.C. 277, 230 F.2d 827 (1956); Kansas City Power & Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955); Pittsburgh Hotels Association, Inc. v. Urban Redevelopment Authority of Pittsburgh, 309 F.2d 186 (3 Cir. 1962), cert. denied Hilton Hotels Corp. v. Urban Redevelopment Authority of Pittsburgh, 372 U.S. 916, 83 S.Ct. 730, 9 L.Ed.2d 723 (1963). Defendants have relied upon some of these cases in their briefs, pointing to language suggesting that the availability of judicial review turns upon the presence of Congressional intent to bestow a “legal right” to protection, or, in other cases, upon the invasion of a “legally protected right.” The results reached in these cases are entirely consistent with the result reached here. . Hardin v. Kentucky Utilities Company, supra; OMcaffo Junction Case, supra. . Note, 73 Yale L.J. 1080 (1964). . The opinion in Johnson makes reference to Hunter v. City of New York, 121 N.Y.S.2d 841 (Sup.Ct.1953). We read that case as holding that state courts have no jurisdiction to review the actions of agencies of the federal government. . Cf. Merge v. Sharott, 341 F.2d 989 (3 Cir. 1965). . The plaintiffs contend that section 601 of the Civil Rights Act of 1964, 42 U.S. C. § 2000d, is an independent basis on which they have standing to" }, { "docid": "22067147", "title": "", "text": "propriety of allowing particular plaintiffs to bring litigation (their standing to sue) and the propriety of judicial attempts to resolve the problem which the plaintiffs are attempting to bring before the court (the question of justiciability) We consider first the issue of standing/ (The courts will not, it is clear, entertain a suit by one who does not have some personal stake in the outcome Of the litigation) See Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Stark v. Wickard, 321 U.S. 288, 304, 64 S.Ct. 559, 88 L.Ed. 733 (1944); cf. Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 151, 71 S.Ct. 624, 95 L.Ed. 817 (1951) (opinion of Mr. Justice Frankfurter). In Frothingham v. Mellon, 262 U.S. 447, 486-89, 43 S.Ct. 597, 67 L.Ed. 1078 (1923), the Supreme Court refused to allow a federal taxpayer to challenge the constitutionality of a federal statute where the plaintiff’s claimed interest in the outcome was simply that “the effect of the appropriations complained of will be to increase the burden of future taxation and thereby take her property without due process of law.” 262 U.S. at 486, 43 S.Ct. at 600. The burden of future taxation was held to be essentially a matter of public, not individual, concern. Even where a plaintiff hps a personal stake in the outcome of a case, he may be denied standing to sue on the ground that the right which he is attempting to assert is not one which the courts will recognize. Thus, one cannot as a general matter object to governmental action on the basis that it aids one’s competitors, for it is said that no legal wrong results from lawful competition. Alabama Power Co. v. Ickes, 302 U.S. 464, 468-469, 58 S.Ct. 300, 82 L.Ed. 374 (1938); Kansas City Power & Light Company v. McKay, 96 U.S.App.D.C. 273, 225 F.2d 924, cert. denied 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780 (1955). This court has, accordingly, refused to grant standing to plaintiffs who object to urban renewal planning on this basis. Taft Hotel Corp." }, { "docid": "16944944", "title": "", "text": "* * * this action is one to compel the performance of a duty in compliance with regulation, and not one to influence the ultimate decision of the agency. The case seeks compliance with law and regulation, not control of discretion.” (Appellees’ Brief, p. 49). . Appellees reliance on the language of the Kansas City Power case, suggesting standing where “regulatory action” by the government is involved is ineffective. The “regulatory action” to which reference is made, concerns “situations” such as Sanders under the F.T.C. or any other administrative body regulating rates, licenses, charters, et al. Appellees distinguish the Cleco case, 5 Cir., 354 F.2d 854, since it dealt with the regulations only collaterally. Actually the Fifth Circuit was faced with the identical regulations and arguments as in the instant case. The court therein briefly disposed of the regulations without the apparent difficulty that we have encountered. It is true there were additional claims raised in the complaint, i. e., violation of Antitrust Law, illegal competition and constitutional claims under the Fifth Amendment. • However, appellants’ petition for certiorari, denied on November 21, 1966, 385 U.S. 964, 87 S.Ct. 388, 17 L.Ed.2d 309, clearly relies on the same procedural deficiencies arising under Bulletin 111-3, as appellees claim here. We agree with the Fifth Circuit’s holding that appellees there, as here, have no standing to sue. . We do not overlook appellees’ reliance on Gonzalez v. Freeman, 118 U.S.App. D.C. 180, 334 F.2d 570. There the Administrator took direct action against appellants, depriving them of eligibility for government contracts. The court said, “appellants have a right not to be debarred except in an authorized and procedurally fair manner.” 334 F.2d at 576. See also Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403 and United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260, 74 S.Ct. 499, 98 L.Ed. 681, where direct administrative action against Service and Accardi was prohibited without following the applicable procedural safeguards. The distinction between those cases and the instant one is readily apparent. The action of the Administrator in this case is to" }, { "docid": "16944922", "title": "", "text": "306 U. S. 118, 59 S.Ct. 366, 83 L.Ed. 543; Duke Power Co. v. Greenwood, 302 U.S. 485, 58 S.Ct. 306, 82 L.Ed. 381; Kansas City Power & Light Co. v. McKay, 96 U.S. App.D.C. 273, 225 F.2d 924, cert. den. 350 U.S. 884, 76 S.Ct. 137, 100 L.Ed. 780; Rural Electrification Administration v. Central Louisiana Electric Co., 5 Cir., 354 F.2d 859; Alabama Power Co. v. Alabama Electric Coop., Inc., M.D.Ala.N.D., 1965, 249 F.Supp. 855. Nor did passage of the Administrative Procedure Act create legal rights which otherwise did not exist. The Supreme Court has long recognized that an “enforceable right” must be more than “a common concern for obedience to law.” Singer & Sons v. Union Pac. R. R. Co., 311 U.S. 295 at 304, 61 S.Ct. 254 at 258, 85 L.Ed. 198. Nor is standing given to the appellees as representing “the public interest” analogous to F. C. C. v. Sanders Brothers Radio Station, 309 U.S. 470, 60 S.Ct. 693, 84 L.Ed. 869. Some interpretations of Sanders make the area confusing and more complicated. See e. g., American President Lines v. Federal Maritime Board, D.C.D.C., 112 F.Supp. 346. The theory of Sanders is extended in Associated Industries of New York State v. Ickes, 2 Cir., 134 F.2d 694, which allows review of any administrative order when the “public interest” is being represented by any person “aggrieved,” acting as “a private Attorney General.” Of course, the concern of the public is involved when a regulatory 'charter is being granted or denied by some administrative agency. Scripps-Howard Radio, Inc. v. F. C. C., 316 U.S. 4, 62 S.Ct. 875, 86 L.Ed. 1229. Thus, “when an existing licensee offers to prove that the economic effect of another station would be detrimental to the public interest” the court will review. See Carroll Broadcasting Co. v. F. C. C., 103 U.S.App.D.C. 346, 258 F.2d 440, 443, followed recently in Southwestern Operating Co. v. F. C. C., 1965, 122 U.S.App.D.C. 137, 351 F.2d 834. See also Panhandle Eastern Pipeline Co. v. F. P. C., 83 U.S.App.D.C. 297, 169 F.2d 881 [existing natural gas" }, { "docid": "313503", "title": "", "text": "wills); Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S.Ct. 624, 95 L.Ed. 817 (Attorney-General’s listing of organizations for use in screening government personnel) ; Shachtman v. Dulles, 96 U.S. App.D.C. 287, 225 F.2d 938 (passport denial); Textile Workers Union of America, C.I.O. v. Allendale Co., 96 U.S.App.D.C. 401, 226 F.2d 765 (WalshHealey Act determinations reviewable under 'the Fulbright Amendment, 66 Stat. 308, 41 U.S.C. § 43a, which overruled Perkins v. Lukens Steel Co., supra, 310 U.S. 113, 60 S.Ct. 869, 84 L.Ed. 1108); Administrative Procedure Act, 5 U.S.C. § 1009(c), “every final agency action for which there is no other adequate remedy in any court shall be subject to judicial review.” We think the intent of Congress was to allow judicial review in these circumstances. Nor is there any lack of standing to sue. Section 10(a) of the Administrative Procedure Act, 5 U.S.C. § 1009 (a), confers standing on persons “suffering legal wrong because of any agency action, or adversely affected or aggrieved by such action within the meaning of any relevant statute,” and the plaintiffs can point to the Panama Canal Act of 1912, as amended in 1950, as well as the Hay-Pauncefote Treaty, as. their statutory authority. Moreover, without legislation they have a right to. judicial redress, since the corporation’^ action in charging tolls in excess of the statutory rate was “of a sort that, if taken by a private person, would create a right of action cognizable by the courts.” Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S. 123, 152, 71 S.Ct. 624, 638, 95 L.Ed. 817 (concurring opinion of Justice Frankfurter) . Here there is no controversy over the' proper person to sue; all users of the canal have been joined in a single class action. The question is rather whether or not there is to be judicial review, since a finding of no standing here means that the courts have no power in the premises. See Joint Anti-Fascist Refugee Committee v. McGrath, supra, 341 U.S. 123, 186, 71 S.Ct. 624, 95 L.Ed. 817 (concurring opinion of Justice Jackson). From all that" } ]

[ { "docid": "22147149", "title": "", "text": "of Pennsylvania, over the past 2Vi years the Secretary has prevailed at the district court level only 31% of the time. Wier v. Heckler, 734 F.2d at 957. Of the cases that survive district court scrutiny, the courts of appeals now reverse district court judgments in favor of the Secretary one-quarter of the time. Id. Such figures present a sharp contrast to those of the period 1970-75, for example, during which the Secretary's determination was affirmed in almost 55% of the cases judicially reviewed. See J. Mashaw, et ah, Social Security Hearings and Appeals 125 (1978). The figures are particularly surprising in view of the fact that the “Secretary does not even have to show she is ‘right’ but only that there is 'substantial evidence’ to support her position.” Wier, 734 F.2d at 957. . The Second Circuit in McGill distinguished MacDonald v. Schweiker, 553 F.Supp. 536 (E.D. N.Y.1982), in which the district court awarded attorney’s fees to a plaintiff who had achieved only a remand. The significant issue in MacDonald was the validity of the plaintiff's notice of administrative appeal, and as a result of the remand order the Secretary clarified the methods that claimants may employ to appeal a denial of benefits. The district court awarded fees because the plaintiff had \"prevailed on an issue important not only to her case but to those of many other social security claimants.” Id. at 540. The Second Circuit labelled this \"a narrow ruling on an exceptional set of circumstances.” 712 F.2d at 32. . We assume that under this arrangement a district court may mark the case closed for statistical purposes, even though a final judgment has not been rendered. . This procedure is in some ways analogous to the \"limited or controlled\" remand employed by the courts of appeals. See 16 Wright, Miller, Cooper & Gressman, Federal Practice and Procedure § 3937 (1977). In that context the appellant court remands a matter to the district court for further factfinding or for clarification, but retains jurisdiction over the case. E.g., United States v. Genser, 582 F.2d 292, 311 (3d Cir.1978)." } ]

[ { "docid": "22589827", "title": "", "text": "fee award without examining its own jurisdiction. See note 11. . Dissenting in Cheng, Judge Timbers argued that the order awarding interim fees in that case was neither conclusive nor unreviewable on appeal. Some of the arguments raised apply equally to McGill. We take no position on this dispute, or on whether the court in McGill actually had jurisdiction. We cite these cases only to demonstrate that the dispositive questions are whether a given order is in fact conclusive and unreviewable. . In Lowe v. Pate Stevedoring, 595 F.2d 256 (5th Cir.1979), a panel of this court allowed a ruling on attorney’s fees to be appealed at the close of the damage portion of a case, but while the equitable portion was still pending. The court did not cite Coopers & Lybrand, and did not apply the three prong test. They did find the award distinct from the merits of the case, and conclusive, pointing out that plaintiff had prevailed, and that additional fees would not be forthcoming from the equitable portion of the case. The court did not, however, examine whether the order would be insulated from review on appeal. For that factor we must take the panel at its word. See note 9. More recently, the only denials of interim attorney's fees which have been successfully appealed have been certified as final by the district court under Rule 54(b) and appealed pursuant to 28 U.S.C. § 1292(b). See Young v. Pierce, 822 F.2d 1376 (5th Cir.1987). Indeed, in Sidag Aktiengesellschaft v. Smoked Foods Products, 813 F.2d 81 (5th Cir.1987), where certification was ineffective, we dismissed the appeal. . In this circuit, a plaintiff is considered a prevailing party for attorney’s fees purposes, only if he or she prevails on \"the central issue[,] by acquiring the primary relief sought.\" Texas State Teachers Ass’n v. Garland Independent School District, 837 F.2d 190, 192 (5th Cir.1988); see also, id. at 195 (Goldberg, J. dissenting). Until a final decision on the merits, it is impossible to tell whether plaintiff has achieved the primary relief sought. In other circuits where plaintiffs are entitled" }, { "docid": "17394019", "title": "", "text": "93 L.Ed. 1528 (1949). To be immediately appealable, an order must meet three criteria: “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). In other contexts, this court has held attorneys’ fee awards to be appealable collateral orders. As we stated in Seigal v. Merrick, 619 F.2d 160, 164 n. 7 (2d Cir.1980): An award of attorney’s fees does not fall within the ambit of Rule 54(b) certification, which is directed toward determinations of the parties’ claims. See Swanson v. American Consumer Industries, Inc., 517 F.2d 555, 560-61 (7 Cir.1975). However, we have appellate jurisdiction under the collateral order doctrine. Cohen v. Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949); Lowe v. Pate Stevedoring Co., 595 F.2d 256, 257 (5 Cir.1979). Indeed, an early case permitting appeal from an order awarding fees before conclusion of the underlying-litigation was a precursor of the Cohen collateral order doctrine. See Trustees v. Greenough, 105 U.S. 527, 531, 26 L.Ed. 1157 (1882). The order of attorneys’ fees in this case is clearly a conclusive determination. The award was based on unsuccessful appeals to this court and to the Supreme Court. Since those appeals have been rejected, there can be no new grounds for any modification of the award in the district court; appellant’s lawyer has paid the $1,000 and can only look to appellate review for relief. Indeed, the district judge apparently recognized this when he declared that the award was final and appealable. Thus, this case is quite unlike the situation in Hastings v. Maine-Endwell Central School District, 676 F.2d 893 (2d Cir.1982), in which an interim award of attorneys’ fees was assessed against a party, and was found to be not immediately appealable in part because it was subject to adjustment by the district court in its final award. It is also clear that the fee award is completely" }, { "docid": "23552617", "title": "", "text": "conferred and limited by Congress’s grant of authority.” Berckeley Inv. Grp. Ltd. v. Colkitt, 259 F.3d 135, 139 (3d Cir.2001) (citing Sheldon v. Sill, 49 U.S. 441, 449, 8 How. 441, 12 L.Ed. 1147 (1850)). Under 28 U.S.C. § 1291, our jurisdiction is limited to “final decisions” of the district courts. Here we are dealing with an award and allocation of counsel fees, embodied in Pretrial Orders Nos. 2622 and 2859, that the District Court designated as “interim.” We have held that a denial of an interim award of attorneys’ fees is not final within the meaning of § 1291. Yakowicz v. Commonwealth of Pennsylvania, 683 F.2d 778, 782 (3d Cir.1982). Accord, e.g., Shipes v. Trinity Indus., Inc., 883 F.2d 339, 341 (5th Cir.1989). Although an order that disposes of “fewer than all of the claims or the rights and liability of fewer than all the parties” is normally not appealable, an exception to the general rule exists when an order is certified as appealable by a district court pursuant to Federal Rule of Civil Procedure 54(b). That is, Rule 54(b) “per-mitís] the district court to separate out final decisions from non-final decisions in multiple party and/or multiple claim litigation” in order to allow immediate appeal. Weiss v. York Hosp., 745 F.2d 786, 802 (3d Cir.1984); see also Allis-Chalmers Corp. v. Philadelphia Electric Co., 521 F.2d 360, 363 (3d Cir.1975) (explaining that Rule 54(b) “attempts to strike a balance between the undesirability of piecemeal appeals and the need for making review available at a time that best serves the needs of the parties”); Bendix Aviation Corp. v. Glass, 195 F.2d 267, 269 (3d Cir.1952) (explaining that “in a multiple claims case the judgment which finally adjudicates all the claims is the only judgment having finality unless [the district] court in its discretion enters a final judgment pursuant to [Rule 54(b) ]”). As Judge Garth points out, in this case no party sought the District Court’s certification and therefore this avenue cannot provide a.basis for our jurisdiction. Nevertheless, the issue of Rule 54(b) certification deserves further discussion in the context of" }, { "docid": "23552616", "title": "", "text": "not intimate any view on the merits of the District Court's [] decision.”) (citing Risjord, 449 U.S. at 379, 101 S.Ct. 669). AMBRO, Circuit Judge, concurring. I join wholeheartedly Judge Garth’s conclusion that the Hague appeal should be allowed notwithstanding its untimely filing. I also agree that each of these appeals must be dismissed for want of appellate jurisdiction and that the circumstances do not warrant relief by way of mandamus. I write separately, however, to highlight certain considerations, though not present here, that I believe would have permitted appellate review. Moreover, because the majority opinion by necessity stops at the jurisdictional gate, the District Court lacks our Court’s comment on the fee award issues. I thus write as but one voice that risks regard as simply a pundit without portfolio. I. Rule 54(b) Certification As a threshold matter and as Judge Garth emphasizes, we must be satisfied that we have jurisdiction to hear these appeals. Metro Transp. Co. v. N. Star Reinsurance Co., 912 F.2d 672, 676 (3d Cir.1990). “This Court’s appellate jurisdiction is conferred and limited by Congress’s grant of authority.” Berckeley Inv. Grp. Ltd. v. Colkitt, 259 F.3d 135, 139 (3d Cir.2001) (citing Sheldon v. Sill, 49 U.S. 441, 449, 8 How. 441, 12 L.Ed. 1147 (1850)). Under 28 U.S.C. § 1291, our jurisdiction is limited to “final decisions” of the district courts. Here we are dealing with an award and allocation of counsel fees, embodied in Pretrial Orders Nos. 2622 and 2859, that the District Court designated as “interim.” We have held that a denial of an interim award of attorneys’ fees is not final within the meaning of § 1291. Yakowicz v. Commonwealth of Pennsylvania, 683 F.2d 778, 782 (3d Cir.1982). Accord, e.g., Shipes v. Trinity Indus., Inc., 883 F.2d 339, 341 (5th Cir.1989). Although an order that disposes of “fewer than all of the claims or the rights and liability of fewer than all the parties” is normally not appealable, an exception to the general rule exists when an order is certified as appealable by a district court pursuant to Federal Rule of Civil" }, { "docid": "8067424", "title": "", "text": "had to await final judgment. Id. The Court concluded that the order refusing to require security was appealable because it was a final disposition of a claimed right that was not an ingredient of the cause of action and did not require consideration with it. Id. See also Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). The district court’s order here fits within the Cohen guidelines. The order refusing to award attorney’s fees conclusively disposed of Derickson’s attorney’s fee request. The order was not a step that merged in the final judgment entered in the underlying criminal prosecution. The third Cohen factor—the involvement of an important right otherwise lost if review had to await final judgment—is, of course, inapplicable since Derickson submitted his fee request, following the usual procedure, after entry of final judgment in the underlying case. Accordingly, we conclude that the district court’s order falls within that “small class [of claims] which finally determine claims of right [too important to be denied review, and] separable from, and collateral to, rights asserted in the [underlying] action.” Cohen, 337 U.S. at 546, 69 S.Ct. at 1225. See also Trustees v. Greenough, 105 U.S. 527, 531, 26 L.Ed. 1157 (1881) (order fixing counsel fees, though incidental and collateral to the main cause, was so independent of it and so finally dispositive “as to make the decision [as to attorney’s fees] substantially a final decree for purposes of an appeal”); Preston v. United States, 284 F.2d 514, 515 n.1 (9th Cir. 1960) (an attorney may appeal from a decision awarding or denying fees as long as the original action, to which the question of fees is ancillary, properly invokes the jurisdiction of the federal courts); accord, Angoff v. Goldfine, 270 F.2d 185 (1st Cir. 1959). THE MERITS This appeal involves the district court’s determination that it lacked jurisdiction to consider an untimely voucher for attorney’s fees. We are not called upon to consider whether amounts awarded, methods of computation, or like matters related to attorney’s fees under the CJA are appealable. 18 U.S.C. § 3006A(i) confers" }, { "docid": "21413954", "title": "", "text": "interim fee award under 42 U.S.C. § 1988 was not appealable under § 1291. See also Morgan v. Kopecky Charter Bus Co., 760 F.2d 919, 921 (9th Cir.1985) (order denying interim attorney’s fees under Title VII, 42 U.S.C. § 2000e-5(k), not appealable); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 829 F.2d 601, 602 (7th Cir.1987) (Section 1988 interim fee award not appealable as final order); Hastings v. Maine-Endwell Cent. School Dist., 676 F.2d 893, 895 (2d Cir.1982) (same); Yackowicz v. Pennsylvania, 683 F.2d 778, 782 (3d Cir.1982) (denial of interim fees under § 2000e-5(k) not appealable final order); Ruiz v. Estelle, 609 F.2d 118 (5th Cir.1980) (Section 1988 interim fee award “patently not yet final”). The circumstances of this award do not distinguish it from other nonfinal interim fee orders. This award does not dispose of the underlying litigation; it did not come after a final judgment on the merits; it does not even dispose of the issue of attorney’s fees, since the district court explicitly provided for revision of the amount at the conclusion of the litigation. Thus, we conclude that the district court’s interim award is not a final order appealable under 28 U.S.C. § 1291. II. Appealability under Collateral Order Doctrine A “small class” of nonfinal orders are nevertheless appealable if they satisfy the requirements of the narrow “collateral order doctrine” of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 546-47, 69 S.Ct. 1221, 1225-1226, 93 L.Ed. 1528 (1949). The order sought to be appealed must: 1) conclusively determine the disputed question; 2) resolve an important issue completely separate from the merits of the action; and' 3) be effectively unreviewable on appeal from a final judgment. Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457-58, 57 L.Ed.2d 531 (1978). “If the order at issue fails to satisfy any one of these requirements, it is not appealable under the collateral-order exception to § 1291.” Gulfstream Aerospace Corp. v. Mayacamas Corp., — U.S. -, 108 S.Ct. 1133, 1137, 99 L.Ed.2d 296 (1988). Here, neither the first nor third requirement is" }, { "docid": "23552590", "title": "", "text": "from all three funds and we know of no authority that allows us to divide the $153 million into three parts, granting jurisdiction to one part and denying it to the other parts. Nor has counsel advised or informed us of such a doctrine. Indeed, it is clear to us that appeals taken from one of the three intermingled funds and from two among many pretrial orders, all of which originated from just one case, constitute paradigmatic non-final appeals: appeals which do not satisfy our jurisdiction. C. The difficulty with the Appellants’ theories is that they not only run counter to the District Court’s intent and actions, but they also fail to recognize that the MDL 1203 fund, even if assumed to be a “final” distribution, was but one part of the funds distributed. Funds A and B still retained the greater portion of the monies that funded them. A decision of the district court is “final” if it “ends litigation upon the merits and leaves nothing for [the] court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). Accordingly, then, an interim award of attorneys’ fees is not, in almost all cases, an appealable final order because it foresees further and additional action by the district court, thus continuing, but not concluding, the fee litigation. See Yakowicz v. Commonwealth of Pennsylvania, 683 F.2d 778, 782 (3d Cir.1982) (holding that an order denying interim attorney’s fees.is not a final order); see also In re Firstmark Corp., 46 F.3d 653, 657 (7th Cir.1995) (“[A]n award of interim fees does not conclusively determine the total compensation due to counsel, so such decisions are generally not considered final.”); Shipes v. Trinity Indus., Inc., 883 F.2d 339, 341 (5th Cir.1989) (holding that awards or denials of interim fees are not “final” within the meaning of 28 U.S.C. § 1291); Rosenfeld v. United States, 859 F.2d 717, 720 (9th Cir.1988) (interim fee award not appealable where “district court explicitly provided for revision of the amount at the conclusion of the litigation”); Hastings v." }, { "docid": "1703614", "title": "", "text": "the meaning of sec. 1291. See, e.g., Rosenfeld v. United States, 859 F.2d 717, 720 (9th Cir.1988) (award of interim fees under Freedom of Information Act not final); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 829 F.2d 601, 602 (7th Cir.1987) (award of interim fees not final); Yakowicz v. Pennsylvania, 683 F.2d 778, 782 (3d Cir.1982) (denial of interim fees not final); Hastings v. Maine-Endwell Central School District, 676 F.2d 893, 895 (2d Cir.1982) (award of interim fees not final). The parties’ supplemental briefs suggest that we could treat the district court’s award as a final and appealable order under sec. 1291 even if it does not fall within the collateral order doctrine, but have identified no rule or doctrine other than Rule 54(b) that would justify treating this order as final within the meaning of our statutory grant of appellate jurisdiction. The parties’ arguments thus fail to address the issue we raised at oral argument. As a matter of doctrinal housekeeping, we must clarify that Rule 54(b) and the collateral order doctrine create conceptually distinct exceptions to the finality rule and are not co-equal principles for the purposes of this case. Rule 54(b) was adopted in response to the burgeoning of complex litigation in the federal courts. Prior to adoption of Rule 54(b) the finality principle required — at least in theory — that an entire case be treated as a single judicial unit even if it consisted of numerous discrete claims. See 10 C. Wright, A. Miller & E. Cooper, Federal Practice & Procedure sec. 3909, at 448-49 (1976). By allowing district courts to certify as final those decisions that disposed of discrete pieces of larger litigation, Rule 54(b) vested the district courts with the discretion to alleviate the burden to parties of waiting until resolution of the entire case to appeal a decision that may have been entered years before. As we note above, however, the distinct claims governed by Rule 54(b) are required to meet statutory finality requirements. Rule 54(b) therefore relaxes only the “judicial unit” aspect of finality principles and otherwise" }, { "docid": "1703613", "title": "", "text": "rule. A. Finality of an interim award of attorney’s fees under sec. 1291 Generally speaking, a decision of the district court is “final” if it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Thus, treating a claim for attorney’s fees as a distinct claim for relief under Rule 54(b), an order awarding attorney’s fees may be considered final within the meaning of sec. 1291 only if it disposes finally of the attorney’s fee question. In Ruiz v. Estelle we held that an interim award of attorney’s fees under 42 U.S.C. sec. 1988 “is patently not yet final in the sense that it disposes of the litigation” and consequently may be appealed separately only if it falls within the collateral order exception to sec. 1291. 609 F.2d 118, 118 (5th Cir.1980). Several other circuits have followed suit, holding broadly that awards or denials of interim fees are not “final” within the meaning of sec. 1291. See, e.g., Rosenfeld v. United States, 859 F.2d 717, 720 (9th Cir.1988) (award of interim fees under Freedom of Information Act not final); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 829 F.2d 601, 602 (7th Cir.1987) (award of interim fees not final); Yakowicz v. Pennsylvania, 683 F.2d 778, 782 (3d Cir.1982) (denial of interim fees not final); Hastings v. Maine-Endwell Central School District, 676 F.2d 893, 895 (2d Cir.1982) (award of interim fees not final). The parties’ supplemental briefs suggest that we could treat the district court’s award as a final and appealable order under sec. 1291 even if it does not fall within the collateral order doctrine, but have identified no rule or doctrine other than Rule 54(b) that would justify treating this order as final within the meaning of our statutory grant of appellate jurisdiction. The parties’ arguments thus fail to address the issue we raised at oral argument. As a matter of doctrinal housekeeping, we must clarify that Rule 54(b) and the collateral" }, { "docid": "4006155", "title": "", "text": "considerations from those presented by an order denying such fees, we express no view on whether a grant of interim attorney’s fees is appealable. . 14 Fed.R.Civ.P. 37(b) provides in part that if a party fails to obey a discovery order, the court shall require the party failing to obey the order or the attorney advising him or both to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances made an award of expenses unjust. . The court did not reach the issue of whether the first criterion was satisfied, confining itself to the observation that “while the order may conclusively determine the ‘disputed question’ of the sanctions,” it was clear that the other criteria had not been met. 658 F.2d at 947. . In support of her contrary argument that the district court’s order of October 28, 1981, is “final,” Yakowicz relies principally on three cases, none of which is controlling in our view. The first case, Knapp v. Bankers Securities Corp., 230 F.2d 717 (3d Cir. 1956), is simply a straightforward application of the Cohen rule: Knapp merely held that an order refusing to require plaintiffs in a stockholder derivative action to post security is appealable under § 1291. In the second case, Preston v. United States, 284 F.2d 514, 515 n.1 (9th Cir. 1960), the court held that “[a]n attorney may himself appeal from a decision awarding or denying him fees as long as the original action to which the question of fees is ancillary, properly evokes the jurisdiction of the federal courts.... The' orders appealed from seem to us to fall within the sweep of Cohen v. Beneficial Industrial Loan Corp. ...” Without commenting in any way on the merits of Preston, we fail to see its relevance to the present appeal; Yakowicz’s counsel is not taking an appeal himself. The third case, United States v. Baker, 603 F.2d 759 (9th Cir. 1979), is also distinguishable. In that criminal proceeding, the Ninth Circuit held appealable two orders of the district" }, { "docid": "2202108", "title": "", "text": "of fees are separate judgments for purposes of § 1291, the Cohen “collateral order” doctrine is not a neat fit. An award is collateral to the merits, but the final award is independently appealable and an interim award is not “collateral” to that decision. Forgay, which allowed an appeal when the judge directed an immediate transfer of property, may offer the better analogy. Awards of interim fees compel payment in mid-litigation, with chancy prospects of recoupment at the end, the sort of situation Forgay contemplated. See O D C Communications Corp. v. Wenruth Investments, 826 F.2d 509, 513-16 (7th Cir.1987) (discussing the “irreparable harm” component of appellate jurisdiction under Forgay). Sailing is not smooth for these parties, however. Plaintiffs were not required to pay anything; they do not face a risk of irreparable injury in paying now and being unable to recover later. If at the end of the case the court determines that Delaware Valley allows a risk multiplier, counsel can be fully compensated, including interest to cover the time value of money. They prefer money now to money later, but the difference is not an irreparable loss and does not allow immediate appeal. Yakowicz v. Pennsylvania, 683 F.2d 778, 783 (3d Cir.1982). Perhaps plaintiffs believe that their appeal can ridé pendent to the Board of Education’s. Abney v. United States, 431 U.S. 651, 662-63, 97 S.Ct. 2034, 2041-42, 52 L.Ed.2d 651 (1977), puts a hurdle in the way, but there is an even steeper one: timeliness. Judge Roszkowski made his interim award in February 1990 and refined it in April. Neither side filed a notice of appeal until early October, well after the 30 days allowed by Fed.R.App.P. 4(a)(1). October would be plenty of time if the appeals were taken from the order of September 25. Yet the judge did not make the collateral order in September; he certified an earlier order under § 1292(b). The dispositive question becomes whether the reentry of a collateral order (if that is the best way to characterize the action in September) restarts the time for appeal. It does not. Weir v." }, { "docid": "22589819", "title": "", "text": "(2d Cir.1982), the Second Circuit held an order granting interim attorney's fees to be separate and distinct from the merits of the action. They concluded, however that the award in that case would be reviewable after final judgment and held the order unappealable. Later, in McGill v. Secretary of Health & Human Services, 712 F.2d 28 (2d Cir.1983), the same court concluded that, in a case involving a request for fees in a dispute over social security benefits, an award of attorney’s fees was appealable because review might prove unavailable after remand to the agency. They stated “if plaintiff is awarded the benefits at the administrative level or chooses not to seek review of a denial of benefits, there will be no further judicial proceedings on which to base a later appeal.” Id. at 29; cf. Cheng v. GAF Corp., 713 F.2d 886 (2d Cir.1983). In this circuit as well, reviewability and conclusiveness have proven dispositive. Furthermore, we apply the three prong test more stringently than the Second Circuit. In Ruiz v. Estelle, 609 F.2d 118 (5th Cir.1980), a class action brought to reform the Texas prison system, we applied the three prong test to determine whether an order awarding attorney’s fees fit within the “collateral order” exception to the final order requirement. There, the district court made an interim award of fees to an attorney who was withdrawing from the case. The State of Texas sought to appeal. Judge Rubin noted that, “Because the order is presently not yet final in the sense that it disposes of the litigation, we ... have authority to consider an appeal from it only if jurisdiction could be established under the collateral order doctrine, which treats certain rulings made pendente lite as final orders.” Id. at 118. Judge Rubin examined the history of the “collateral order doctrine” and noted that the exception should not be allowed to swallow the rule, saying; After [its] birth the Cohen doctrine, spawned by a desire to avoid the rigidity of the final judgment rule and nurtured by the maternal tendency of appellate courts to protect youthful litigation" }, { "docid": "23552591", "title": "", "text": "judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). Accordingly, then, an interim award of attorneys’ fees is not, in almost all cases, an appealable final order because it foresees further and additional action by the district court, thus continuing, but not concluding, the fee litigation. See Yakowicz v. Commonwealth of Pennsylvania, 683 F.2d 778, 782 (3d Cir.1982) (holding that an order denying interim attorney’s fees.is not a final order); see also In re Firstmark Corp., 46 F.3d 653, 657 (7th Cir.1995) (“[A]n award of interim fees does not conclusively determine the total compensation due to counsel, so such decisions are generally not considered final.”); Shipes v. Trinity Indus., Inc., 883 F.2d 339, 341 (5th Cir.1989) (holding that awards or denials of interim fees are not “final” within the meaning of 28 U.S.C. § 1291); Rosenfeld v. United States, 859 F.2d 717, 720 (9th Cir.1988) (interim fee award not appealable where “district court explicitly provided for revision of the amount at the conclusion of the litigation”); Hastings v. Maine-Endwell Cent. Sch. Dist., 676 F.2d 893, 896 (2d Cir.1982) (holding that order for interim attorney’s fees not appealable under § 1291); Ruiz v. Estelle, 609 F.2d 118, 118 (5th Cir.1980) (same). Appellants urge, however, that the fee award determined by the District Court possesses the necessary elements of finality to constitute a final, appealable order for purposes of 28 U.S.C. § 1291. In Appellants’ view, there was nothing tentative about the fee award, which they claim differentiates this case from those cases holding that interim fee awards are non-appealable. The signal characteristic of a non-appealable interim award, they argue, is the partial compensation paid to counsel “amidst ongoing litigation” such that the determination of the ultimate amount of the award becomes entwined with a consideration of the merits. Here, by contrast, they claim the merits of the underlying litigation is now complete because the District Court has approved the class action settlement, leaving only ministerial or administrative tasks associated with the implementation of the settlement to be completed. Properly understood, then, they argue that" }, { "docid": "22589826", "title": "", "text": "Cir. 1980); Pflocks v. Firestone Tire & Rubber Co., 634 F.2d 1215 (9th Cir.1980). Denials of interim attorney's fees have been held appealable under the collateral order exception in Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); Trustees v. Greenough, 105 U.S. (15 Otto) 527, 26 L.Ed. 1157 (1882) (pre section 1291 case); United States Steel Corp. v. United Mine Workers, 456 F.2d 483 (3rd Cir.1972); Preston v. United States, 284 F.2d 514 (9th Cir.1960); In re Derickson, 640 F.2d 946 (9th Cir.1981). Finally, denials of interim attorney’s fees have been held outside the collateral order exception in Yakowicz v. Pennsylvania, 683 F.2d 778 (3rd Cir.1982). . For example, the law of the Third Circuit is unclear. In Yakowicz v. Pennsylvania, 683 F.2d 778 (3rd Cir.1982), the court held that denial of interim attorney’s fees did not fit within the Cohen doctrine, while in Brown v. Secretary of Health & Human Services, 747 F.2d 878 (3d Cir.1984), the same court allowed an appeal from denial of an interim fee award without examining its own jurisdiction. See note 11. . Dissenting in Cheng, Judge Timbers argued that the order awarding interim fees in that case was neither conclusive nor unreviewable on appeal. Some of the arguments raised apply equally to McGill. We take no position on this dispute, or on whether the court in McGill actually had jurisdiction. We cite these cases only to demonstrate that the dispositive questions are whether a given order is in fact conclusive and unreviewable. . In Lowe v. Pate Stevedoring, 595 F.2d 256 (5th Cir.1979), a panel of this court allowed a ruling on attorney’s fees to be appealed at the close of the damage portion of a case, but while the equitable portion was still pending. The court did not cite Coopers & Lybrand, and did not apply the three prong test. They did find the award distinct from the merits of the case, and conclusive, pointing out that plaintiff had prevailed, and that additional fees would not be forthcoming from the equitable portion of the case." }, { "docid": "16776911", "title": "", "text": "judgment also does not include the amount to be awarded as attorney fees. The guaranty provided that plaintiffs could recover “all expenses, legal and/or otherwise (including Court costs and reasonable attorneys fees) incurred by Sheraton in collecting or endeavoring to collect” the guaranty. The question of whether a judgment, which includes an award of attorney fees against the opposing litigants but does not fix the amount of such fees is a final judgment, is one on which the courts of appeals are divided. Some courts have held that an order granting or denying the attorney fees is collateral and appealable even though the main issue in dispute is not final or appealable. See United States Steel Corp. v. United Mine Workers of America, 456 F.2d 483, 486-87 (3rd Cir. 1972), cert. denied, 408 U.S. 923, 92 S.Ct. 2492, 33 L.Ed.2d 334 (order denying motion for attorney fees without prejudice to movant’s right to resubmit motion should outcome of proceedings warrant the same was appealable under the “collateral order” doctrine where order was in practical effect a final order as the main dispute, a proposed preliminary injunction against work stoppage, was indefinitely continued when the work stoppage had ceased); Preston v. United States, 284 F.2d 514, 515 & n.1 (9th Cir. 1960) (order dismissing petition for supplemental attorney fees and quashing liens was appealable as collateral matter even though the main dispute, a suit against the Secretary of the Interior for an allotment from lands held in trust for Band of Indians, was remanded to district court for correction in related matters); Angoff v. Goldfine, 270 F.2d 185, 186 (1st Cir. 1959) (appellate court had jurisdiction under 28 U.S.C. § 1291 to review plaintiff’s appeal with respect to attorney fees from a judgment approving a proposed settlement and awarding attorney fees as the issue of attorney fees was collateral to the main proceeding). Some courts have directly addressed the issue in the present case and found the opinion below was final and appealable even though the amount of attorney fees had not been determined. See Swanson v. American Consumer Industries, Inc.," }, { "docid": "16776914", "title": "", "text": "1976) (appeal of an order granting attorney fees was not untimely as the first order granting the motion to award attorney fees but not determining the amount was not final); Aetna Casualty & Surety Company v. Giesow, 412 F.2d 468 (2d Cir. 1969) (where reasonable counsel fees incurred by surety were a contractually specified element of damages and the amount was not determined, judgment was not appealable final judgment). But see Holley v. Lavine, 605 F.2d 638, 642 & n.6 (2d Cir. 1979) (where award did not specify amount of attorney fees, but attorneys agreed to the amount, the court was not disposed to take too technical a view whether there was a final appealable judgment); Peoples Bank of Virgin Islands v. Figueroa, 559 F.2d 914, 916 n.2 (3rd Cir. 1977) (where district court’s order left open the question of counsel fees but a subsequent nunc pro tunc order was entered by the parties respecting the counsel fees, the court had jurisdiction under 28 U.S.C. § 1291); Cinerama, Inc. v. Sweet Music, S.A., 482 F.2d 66, 69-70 & n.2 (2d Cir. 1973) (dictum) (although failure to set attorney fees as a matter of contract damages prevents an order from being final, failure to set attorney fees where fees are a matter of judicial discretion may not prevent order from being final); Bakery & Confectionery Workers International Union of America v. Ratner, 118 App.D.C. 269, 335 F.2d 691 (D.C.Ct. App.1964) (court reviewed an appeal awarding attorney fees to attorney who moved to withdraw from class action, for independent counsel to be appointed in his stead, and for reasonable fees; court, however, did not address the finality issue). Where the attorney fees are a claim on a common fund and are contingent upon the exigencies of equitable litigation, the United States Supreme Court has held their award is collateral and may be appealed independently of the principal action. Sprague v. Ticonic National Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); Trustees v. Greenough, 105 U.S. 527, 26 L.Ed. 1157 (1882). The Supreme Court pointed out in Sprague that the" }, { "docid": "1703616", "title": "", "text": "operates within the constraints of statutory finality. The collateral order doctrine is, in contrast, a judicially-created exception to the statutory finality requirements — and therefore is an aspect of statutory finality — that permits appeals from orders that would otherwise be considered interlocutory. Because an interim award of fees is, by definition, interlocutory, the relationship between these two rules is such that an interim fee award could not be certified as final under Rule 54(b) unless it also meets the requirements of the collateral order doctrine or one of the statutory exceptions to the finality rule. B. The Collateral Order Doctrine Courts have reached mixed results in determining the appealability of interim fee awards under the collateral order doctrine. See Dardar v. LaFourche Realty Co., 849 F.2d 955, 957 n. 8 (5th Cir.1988) (citing cases). The doctrine, announced in Cohen v. Beneficial Industrial Loan Co., allows appeals from a small class of orders which finally determine issues separate from the merits of the case. 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). In order to be appealable under the Cohen doctrine “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). Because interim fee awards will vary in character, we must consider whether this award is sufficiently different from the awards we considered in Ruiz and Dardar, supra, to fall within the scope of the doctrine. We turn now to the three requirements. 1. Completely Separate from the Merits First, we note that the Supreme Court’s holding in White v. New Hampshire Dep’t of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), could support the conclusion that an award of interim attorney’s fees is “completely separate” from the merits. See Hastings, 676 F.2d at 896; but see Yakowicz, 683 F.2d at 784 n. 11 (noting that two members of the panel found White controlling on" }, { "docid": "1703617", "title": "", "text": "(1949). In order to be appealable under the Cohen doctrine “[T]he order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978). Because interim fee awards will vary in character, we must consider whether this award is sufficiently different from the awards we considered in Ruiz and Dardar, supra, to fall within the scope of the doctrine. We turn now to the three requirements. 1. Completely Separate from the Merits First, we note that the Supreme Court’s holding in White v. New Hampshire Dep’t of Employment Security, 455 U.S. 445, 102 S.Ct. 1162, 71 L.Ed.2d 325 (1982), could support the conclusion that an award of interim attorney’s fees is “completely separate” from the merits. See Hastings, 676 F.2d at 896; but see Yakowicz, 683 F.2d at 784 n. 11 (noting that two members of the panel found White controlling on this point while the writing judge would find White inapplicable to interim awards of attorney’s fees). In White, the Court held that a post-judgment motion for attorney’s fees under sec. 1988 was not a motion to amend or alter a judgment, governed by Rule 59(e), because an award of attorney’s fees “is uniquely separable from the cause of action to be proved at trial.” Id. 455 U.S. at 452,102 S.Ct. at 1166. The Court reasoned that because “[sjection 1988 provides for awards of attorney’s fees only to a ‘prevailing party[,]’ ... the court’s decision of entitlement to fees will ... require an inquiry separate from the decision on the merits— an inquiry that cannot even commence until one party has ‘prevailed.’ ” Id. at 451-52, 102 S.Ct. at 1166-67. Because the Court stated that the above reasoning would apply “regardless of when attorney’s fees are requested,” id. at 451, 102 S.Ct. at 1166, it is possible to argue that awards of interim attorney’s fees similarly are separate from the merits of the case because they" }, { "docid": "21413953", "title": "", "text": "jurisdiction, contending that the interim fee award is not a final order under 28 U.S.C. § 1291. If the award is not final, then the government asks for review notwithstanding, either under the collateral order doctrine, the Forgay-Conrad hardship exception, as appeal of an injunction under § 1292(a)(1), or, finally, by considering its appeal as a petition for writ of mandamus. I. Finality of the Grant of an Interim Fee Award under FOIA Assuming for the moment that FOIA provides for interim fee awards, a point the government vigorously contests, such awards are not final, appealable orders. Our circuit has not considered specifically the finality of interim fee awards under FOIA, nor, to our knowledge, has any other circuit. However, we have joined several other circuits in holding that the grant or denial of interim attorney’s fees pursuant to other federal statutes is not an appeal-able final order under 28 U.S.C. § 1291. In Hillery v. Rushen, 702 F.2d 848 (9th Cir.1983), we granted a motion to dismiss for lack of jurisdiction, holding that an interim fee award under 42 U.S.C. § 1988 was not appealable under § 1291. See also Morgan v. Kopecky Charter Bus Co., 760 F.2d 919, 921 (9th Cir.1985) (order denying interim attorney’s fees under Title VII, 42 U.S.C. § 2000e-5(k), not appealable); Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Wisconsin, 829 F.2d 601, 602 (7th Cir.1987) (Section 1988 interim fee award not appealable as final order); Hastings v. Maine-Endwell Cent. School Dist., 676 F.2d 893, 895 (2d Cir.1982) (same); Yackowicz v. Pennsylvania, 683 F.2d 778, 782 (3d Cir.1982) (denial of interim fees under § 2000e-5(k) not appealable final order); Ruiz v. Estelle, 609 F.2d 118 (5th Cir.1980) (Section 1988 interim fee award “patently not yet final”). The circumstances of this award do not distinguish it from other nonfinal interim fee orders. This award does not dispose of the underlying litigation; it did not come after a final judgment on the merits; it does not even dispose of the issue of attorney’s fees, since the district court explicitly provided for revision of the" }, { "docid": "22589825", "title": "", "text": "F.2d 722 (5th Cir.1977). . Williams v. Ezell, 531 F.2d 1261 (5th Cir.1976). . Awards of interim attorney’s fees have been held appealable under the collateral order exception in Angoff v. Goldfine, 270 F.2d 185 (1st Cir.1959); Seigal v. Merrick, 619 F.2d 160 (2d Cir.1980); Cheng v. GAF Corp., 713 F.2d 886 (2nd Cir.1983); Lowe v. Pate Stevedoring Co., 595 F.2d 256 (5th Cir.1979); Memphis Sheraton Corp. v. Kirkley, 614 F.2d 131 (6th Cir.1980); Swanson v. American Consumer Industries, Inc., 517 F.2d 555 (7th Cir.1975); Obin v. International Asso. of Machinists & Aerospace Workers, 651 F.2d 574 (8th Cir.1981); United States v. Baker, 603 F.2d 759 (9th Cir.1979). Awards of attorney’s fees have been held not within the collateral order exception and unappealable in Hastings v. Maine-Endwell Cent. School Dist., 676 F.2d 893 (2nd Cir. 1982); Alart Associates, Inc. v. Aptaker, 402 F.2d 779 (2nd Cir.1968); Eastern Maico Distributors, Inc. v. Maico-Fahrzeugfabrik, G.m.b.H., 658 F.2d 944 (3rd Cir.1981); In re Underwriters at Lloyd’s, 666 F.2d 55 (4th Cir.1981); Ruiz v. Estelle, 609 F.2d 118 (5th Cir. 1980); Pflocks v. Firestone Tire & Rubber Co., 634 F.2d 1215 (9th Cir.1980). Denials of interim attorney's fees have been held appealable under the collateral order exception in Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 59 S.Ct. 777, 83 L.Ed. 1184 (1939); Trustees v. Greenough, 105 U.S. (15 Otto) 527, 26 L.Ed. 1157 (1882) (pre section 1291 case); United States Steel Corp. v. United Mine Workers, 456 F.2d 483 (3rd Cir.1972); Preston v. United States, 284 F.2d 514 (9th Cir.1960); In re Derickson, 640 F.2d 946 (9th Cir.1981). Finally, denials of interim attorney’s fees have been held outside the collateral order exception in Yakowicz v. Pennsylvania, 683 F.2d 778 (3rd Cir.1982). . For example, the law of the Third Circuit is unclear. In Yakowicz v. Pennsylvania, 683 F.2d 778 (3rd Cir.1982), the court held that denial of interim attorney’s fees did not fit within the Cohen doctrine, while in Brown v. Secretary of Health & Human Services, 747 F.2d 878 (3d Cir.1984), the same court allowed an appeal from denial of an interim" } ]

[ { "docid": "22640579", "title": "", "text": "Our previous decisions offer guidance, but today’s extension of disparate impact analysis calls for a fresh and somewhat closer examination of the constraints that operate to keep that analysis within its proper bounds. First, we note that the plaintiff’s burden in establishing a prima facie case goes beyond the need to show that there are statistical disparities in the employer’s work force. The plaintiff must begin by identifying the specific employment practice that is challenged. Although this has been relatively easy to do in challenges to standardized tests, it may sometimes be more difficult when subjective selection criteria are at issue. Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities. Cf. Connecticut v. Teal, 457 U. S. 440 (1982). Once the employment practice at issue has been identified, causation must be proved; that is, the plaintiff must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group. Our formulations, which have never been framed in terms of any rigid mathematical formula, have consistently stressed that statistical disparities must be sufficiently substantial that they raise such an inference of causation. In Griggs, for example, we examined “requirements [that] operate[d] to disqualify Negroes at a substantially higher rate than white applicants.” 401 U. S., at 426. Similarly, we said in Albemarle Paper Co. that plaintiffs are required to show “that the tests in question select applicants for hire or promotion in a racial pattern significantly different from that of the pool of applicants.” 422 U. S., at 425. Later cases have framed the test in similar terms. See, e. g., Washington v. Davis, 426 U. S., at 246-247 (“hiring and promotion practices disqualifying substantially disproportionate numbers of blacks”); Dothard, 433 U. S., at 329 (employment standards that “select applicants for hire in a significantly" } ]

[ { "docid": "22494985", "title": "", "text": "analysis. See Expert Rebuttal Rep. of Edwin L. Bradley, ECF No. 342-6 at 18. Dr. Bradley did not provide any similar analysis or opinion with respect to the purportedly missing job file data. Accordingly, the Court finds that plaintiffs have failed to meet their burden to show that Amtrak's selection procedures are \"not capable of separation for analysis.\" Likewise, plaintiffs have not identified any specific disciplinary practices that they claim led to a disparate impact. Indeed, Dr. Bradley conceded that he did not attempt to study particular forms of discipline used at Amtrak: Q. So you can't say anything based on your discipline study about what might have caused the disparate impact in the award of disciplines to African-Americans? A. That's correct. Q. And you didn't study disciplinary-any particular disciplinary infraction to see if maybe that type of infraction had a discriminatory impact on African-Americans, did you? A. What do you mean by that? Q. Well, you took all charges no matter what kind of charge. You didn't look at, well, this charge involves absenteeism or this charge involves tardiness or this charge involves insubordination? You didn't look at the different types of charges, did you? A. No, I did not. Q. You had the data to look at those different types of charges, didn't you? A. They did show the different types of charges, that's correct. Q. Why didn't you look at the different types of charges? A. I was interested in the disciplinary process as a whole. Bradley Dep., ECF No. 331-3 at 65. To survive summary judgment, plaintiffs are \"responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.\" Smith v. City of Jackson, Miss. , 544 U.S. 228, 241, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005). This is because a \"failure to identify the specific practice being challenged is the sort of omission that could result in employers being potentially liable for the myriad of innocent causes that may lead to statistical imbalances.\" Id. (citation and internal quotation marks omitted). Here, plaintiffs have failed to identify any specific" }, { "docid": "22494930", "title": "", "text": "at 9-26. As such, Amtrak argues that Dr. Bradley and Dr. Fox's analysis will be unhelpful to the trier of fact because these experts cannot opine that any specific employment practice caused the alleged statistical disparities. Id. at 16. Amtrak notes that plaintiffs' experts could have utilized the job files produced in discovery that contained candidate records, applications, selection criteria, rating sheets, and other records relating to each of the selections contained in the Joint Database. Id. at 7, 11, 36. Plaintiffs respond that the components of Amtrak's selection process \"were not able to be separated for analysis because they were interwoven and overlapping parts of a singular process.\" Pls.' Opp. to Mot. to Exclude Bradley and Fox, ECF No. 342 at 10-15. Plaintiffs further claim that data to do such an analysis was not available. Id. at 10, 15-21. Plaintiffs bear the initial burden of making out a prima facie case of discrimination. Cooper v. Fed. Reserve Bank of Richmond , 467 U.S. 867, 874, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). And because plaintiffs allege a system-wide pattern or practice of discrimination, plaintiffs have \"to prove more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts.\" Int'l Bhd. of Teamsters v. United States , 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Rather, plaintiffs have \"to establish by a preponderance of the evidence\" that racial discrimination was Amtrak's \"standard operating procedure-the regular rather than the unusual practice.\" Id. In a case such as this, then, statistical data is relevant because it can be used to establish a general discriminatory pattern in an employer's hiring or promotion practices. As the Supreme Court explained, [s]tatistics showing racial or ethnic imbalance are probative ... because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which the employees are hired. Considerations such as small sample size may, of" }, { "docid": "22494933", "title": "", "text": "as to disparate impact, 42 U.S.C. § 2000e-2(k)(1)(B)(i), Dr. Bradley and Dr. Fox's report does nothing to demonstrate this fact. Their report does not grapple with the data contained in Amtrak's job files or explain how it was inadequate to render a statistical analysis as to a particular employment practice. Nonetheless, although the statistical study proffered by plaintiffs' experts may, ultimately, be inadequate to satisfy plaintiffs' burden on the merits, the Court declines to exclude it as irrelevant at this time. As other courts have found, a \"statistical study may fall short of proving the plaintiff's case, but still remain relevant to the issues in dispute.\" Obrey v. Johnson , 400 F.3d 691, 695 (9th Cir. 2005). For example, in Obrey , the defendant challenged the admission of the plaintiff's expert report because, inter alia , the statistical analysis was irrelevant to plaintiff's claims that the defendant engaged in discriminatory hiring practices. Id. at 694. The statistical analysis in that case only analyzed the race of the managers selected by the employer as compared to the race of those who applied for managerial positions-and, just like in this case, did not take into account the relative qualifications of the applicant pool or evaluate any specific employment practice. Id. at 694-698. While this evidence \"by itself\" could not \"constitute proof that the [employer] has discriminated against [the plaintiff],\" the court explained that \"it should have been admitted for whatever probative value it had.\" Id. at 697. In other words, \"defendant's objections to the admission of [the statistical evidence] went to weight and sufficiency rather than admissibility.\" Id. ; see also, e.g. , Puffer v. Allstate Ins. Co. , 255 F.R.D. 450, 462 (N.D. Ill. 2009) (although plaintiff's statistical expert \"fail[ed] to link any pay differential that she found to any [employer] policy or practice,\" that deficiency did not render the report \"irrelevant\" but rather simply limited its probative value). Accordingly, the Court declines to exclude Dr. Bradley and Dr. Fox's testimony or report. IV. EXCLUSION OF OTHER EVIDENCE Amtrak has also moved to strike portions of the declarations submitted by plaintiffs" }, { "docid": "6199293", "title": "", "text": "to once again ‘go to the foot of the line.’ ” Pettway v. American Cast Iron Pipe Co., 494 F.2d 211 (5th Cir.1974) Lufkin’s subjective employment practices are inextricably intertwined. The disparate impacts begin on the day one is hired and are potentially magnified each time one’s career is intersects a subjective decision-making process. Channeling in job placement is reinforced by informal systems of training and promotion. The seniority structure locks employees into their divisions. Layoffs and rehires function to keep African-Americans from advancing. The discriminatory effects of the constellation of suspect employment practices used by Lufkin Industries cannot be isolated individually. The “elements of a respondent’s decision-making process are not capable of separation for analysis, [and thus] the decision-making process may be analyzed as one employment practice.” 42 U.S.C. § 2000e-2(k)(l)(B)(i) Plaintiffs have met their burden in identifying the employment practice resulting in the alleged disparate impact. We must now consider whether evidence can establish that a disparate impact in fact exists. STATISTICAL ANALYSIS A prima facie case also requires Plaintiff to demonstrate that the challenged employment practices effect one race more harshly than the other. Plaintiffs ordinarily employ statistical analyses to make this showing. To support a claim of discrimination, statistical evidence must be based on relevant samples sets. For instance, when evaluating hiring practices, statistical evidence must analyze the qualified work force, rather than the population at large. Similarly, when examining promotion practices, the data must be based only on those qualified for promotion, not the workforce as a whole. Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 990, 108 S.Ct. 2777, 2786-87, 101 L.Ed.2d 827 (1988); Anderson v. Douglas & Lomason Co., 26 F.3d 1277 (5th Cir.1994) Plaintiffs have sought to substantiate their claims through statistical analysis conducted by Ms. Sandra McCune. Ms. McCune both testified before the court in the hearing on class certification and prepared a report of her conclusions which has been admitted into evidence. The McCune report analyzed hiring, job assignment, promotion, compensation, discharge for cause, and layoffs. McCune tested for racial bias in these practices by comparing the ratio" }, { "docid": "22494968", "title": "", "text": "impact). Indeed, Amtrak's statistical expert-whose qualifications and opinions plaintiffs do not challenge-found that there was no consistent pattern of adverse outcomes for African-American individuals when decisions were analyzed based on job-specific selection criteria. See Expert Rep. of Donald Deere (\"Deere Rep.\"), ECF No. 328-5 at 28-32. Nor did Dr. Bradley and Dr. Fox consider objective factors like seniority, previous work experience, or education in examining Amtrak's hiring and promotion decisions. See Bradley Dep., ECF No. 331-3 at 27-29. For example, when asked whether his analysis took into consideration a particular individual's work experience in assessing whether the selection process had an adverse impact, Dr. Bradly admitted that it did not. Accordingly, he acknowledged that it was \"possible\" that his findings of disparate impact could be explained by a wholly \"legitimate factor\" that played \"a decisive role\" in the decision-maker's employment selection. Id. at 28. For this reason, too, plaintiffs' statistical evidence does not demonstrate commonality. See Garcia v. Johanns , 444 F.3d 625, 635 (D.C. Cir. 2006) (district court acted within its discretion in rejecting statistical analysis where the expert \"failed to account for variables that affected the analyses\" and therefore did not connect any alleged disparate impact to defendant's policy or practice); Gonzalez v. Brady , 136 F.R.D. 329, 333 (D.D.C. 1991) (because \"plaintiffs' statistics merely compared the relative number of Hispanics and non-Hispanics at the various grade levels\" and did not \"show the comparison between similarly situated Hispanic and non-Hispanic employees (i.e., employees with similar qualifications and experience),\" they \"offer[ed] little assistance in establishing the existence of the aggrieved class\"). 3. Plaintiffs' Anecdotal Evidence Shows Variability, Not Commonality Plaintiffs also offer anecdotal evidence-in the form of declarations from 101 putative class members-in support of their contention that a common mode of discretionary decisionmaking resulted in racial discrimination across each alleged subclass. Pls.' Class Cert. Mem., ECF No. 303 at 19-22, 31; id. Ex. 8, ECF No. 304-8. To be sure, these declarations provide far too many examples of very serious racial discrimination. For instance: • Bryant Cox states that a white manager called him a \"nigger\" on multiple" }, { "docid": "22494965", "title": "", "text": "practices that are allegedly responsible for any observed statistical disparities.\"). Here, the critical question is whether Dr. Bradley and Dr. Fox's statistical analysis shows that subjective employment decisions at Amtrak led to racially disparate outcomes. Dr. Bradley admitted, however, that the statistical analysis did not focus on any particular employment practice, and he acknowledged that he therefore cannot opine that a particular employment practice caused any alleged racial disparities: Q. Dr. Bradley, I'd like to ask whether or not you can give a professional statistical opinion or do you give a professional statistical opinion in your report that a particular employment practice at Amtrak caused adverse impact against African-Americans? A. I cannot. Q. Did you study whether a particular employment practice at Amtrak caused adverse impact? A. I did not. Bradley Dep., ECF NO. 331-3 at 27. Dr. Bradley reiterated this conclusion later in his testimony: Q. If we start at a global level, how do I know that the employees that I'm looking at ... were affected by some type of criteria that had adverse impact on them that was the same criteria? A. Well, it may not be the same criteria. You get differences I think like we do across all of these jobs in a particular craft. And blacks are showing a smaller rate and it is statistically significant, that indicates to me there's some problem somewhere and we need to investigate where that problem is. Id. at 32-33. In other words, plaintiffs' statistical experts do little more than establish that African-American candidates are underrepresented in Amtrak's hiring and promotion decisions, and overrepresented in Amtrak's disciplinary decisions. This is precisely the sort of statistical evidence that was rejected as insufficient in Dukes . See Dukes , 564 U.S. at 356-57, 131 S.Ct. 2541. Moreover, in conducting their analysis, Dr. Bradley and Dr. Fox examined employment decisions across four craft groups, each of which contain numerous positions with different responsibilities, that are overseen by different supervisors, that are in different locations, and that are covered by different labor unions. See Expert Rep. of Jerrold A. Glass, ECF No." }, { "docid": "9419047", "title": "", "text": "create a genuine issue of material fact. First, the plaintiffs’ expert, Dr. Bradley, failed to identify any specific employment practices responsible for the alleged disparate impact in promotion decisions. He concluded instead that Nucor’s promotion procedure was “not capable of separation for analysis of individual components of the process.” The plaintiffs relied on 42 U.S.C. § 2000e-2(k)(l)(B)(i), which provides that a Title VII disparate impact plaintiff “shall demonstrate that each particular challenged employment practice causes a disparate impact, except that if the complaining party can demonstrate to the court that the elements of a respondent’s decisionmaking process are not capable of separation for analysis, the decisionmaking process may be analyzed as one employment practice.” But this is not a case where the components of the employer’s selection process were incapable of separation. As discussed, Nucor’s five departments used a variety of measures to evaluate candidates for promotion, including objective criteria like experience, training, disciplinary history, and test scores, and subjective criteria such as interview performance and the opinion of the candidate’s current supervisor. See Watson, 487 U.S. at 994, 108 S.Ct. 2777 (plurality opinion) (“Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.”). While Dr. Bradley discussed discipline, training, and work area experience in his rebuttal report, he did so only to show that these factors were “racially tainted” and should not be considered in his plant-wide bottom-line analysis. He did not demonstrate that each factor caused a racial disparity in promotion decisions. Second, the plaintiffs’ statistical evidence assumed that all applicants were qualified for promotion to each available position. We have observed that “ ‘[statistics based on an applicant pool containing individuals lacking minimal qualifications for the job would be of little probative value.’ ” Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 464 (8th Cir.2004) (quoting Watson, 487 U.S. at 997, 108 S.Ct. 2777 (plurality opinion)). This case demonstrates the problem." }, { "docid": "22494964", "title": "", "text": "than their non-African-American counterparts. See generally Bradley/Fox Rep., ECF No. 304-1. Statistical evidence may, of course, be used to prove discrimination on a disparate-impact theory. See, e.g. , Watson v. Fort Worth Bank and Trust , 487 U.S. 977, 991-1000, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). Dukes did not change this standard, but rather reiterated that statistical correlation cannot substitute for a specific finding of class-action commonality. See Dukes , 564 U.S. at 356, 131 S.Ct. 2541. In other words, \"merely proving that the discretionary system has produced a racial ... disparity is not enough \" where plaintiffs are unable to identify a specific employment practice that is responsible for the alleged disparity. Id. This is particularly true when, as here, the challenged employment practices combine both objective and subjective components. See Watson , 487 U.S. at 994, 108 S.Ct. 2777 (\"Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.\"). Here, the critical question is whether Dr. Bradley and Dr. Fox's statistical analysis shows that subjective employment decisions at Amtrak led to racially disparate outcomes. Dr. Bradley admitted, however, that the statistical analysis did not focus on any particular employment practice, and he acknowledged that he therefore cannot opine that a particular employment practice caused any alleged racial disparities: Q. Dr. Bradley, I'd like to ask whether or not you can give a professional statistical opinion or do you give a professional statistical opinion in your report that a particular employment practice at Amtrak caused adverse impact against African-Americans? A. I cannot. Q. Did you study whether a particular employment practice at Amtrak caused adverse impact? A. I did not. Bradley Dep., ECF NO. 331-3 at 27. Dr. Bradley reiterated this conclusion later in his testimony: Q. If we start at a global level, how do I know that the employees that I'm looking at ... were affected by some type of criteria that had" }, { "docid": "22494984", "title": "", "text": "21. As such, the data from these job files could have been used to evaluate the effect of a specific practice-for example, whether the use of a pre-employment test or ratings forms increased the likelihood that an African-American individual would not be selected for the position. Plaintiffs respond that these job files could not be used to analyze different employment practices because the \"contents of each file were inconsistent and varied.\" Pls.' Summ. J. Opp., ECF No. 343 at 16 (providing examples of the inconsistency in documents contained in each file). Nonetheless, plaintiffs have not sufficiently shown that this information could not have meaningfully been used to evaluate different employment practices. For example, plaintiffs do not offer any testimony from their statistical experts that the files do not contain adequate data to conduct a reliable analysis. Indeed, plaintiffs' statistical expert acknowledged that the racial identity of thirty-five percent of the applicants in the applicant flow data was \"unknown,\" but argued that, from a methodological perspective, the missing information was not an insurmountable obstacle to his analysis. See Expert Rebuttal Rep. of Edwin L. Bradley, ECF No. 342-6 at 18. Dr. Bradley did not provide any similar analysis or opinion with respect to the purportedly missing job file data. Accordingly, the Court finds that plaintiffs have failed to meet their burden to show that Amtrak's selection procedures are \"not capable of separation for analysis.\" Likewise, plaintiffs have not identified any specific disciplinary practices that they claim led to a disparate impact. Indeed, Dr. Bradley conceded that he did not attempt to study particular forms of discipline used at Amtrak: Q. So you can't say anything based on your discipline study about what might have caused the disparate impact in the award of disciplines to African-Americans? A. That's correct. Q. And you didn't study disciplinary-any particular disciplinary infraction to see if maybe that type of infraction had a discriminatory impact on African-Americans, did you? A. What do you mean by that? Q. Well, you took all charges no matter what kind of charge. You didn't look at, well, this charge involves absenteeism" }, { "docid": "7419956", "title": "", "text": "336, 97 S.Ct. 1843. The plaintiff may meet his burden by offering circumstantial evidence that is “entirely statistical in nature.” Palmer v. Shultz, 815 F.2d 84, 90 (D.C.Cir.1987); see also Segar, 738 F.2d at 1267. Statistics showing racial or ethnic imbalance are probative in a [pattern and practice case] only because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiseriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant!.] Teamsters, 431 U.S. at 339 n. 20, 97 S.Ct. 1843; see also Segar, 738 F.2d at 1267 (explaining that a plaintiff in a pattern and practice case alleging race discrimination may provide evidence “of a disparity in the position of members of the plaintiff class and comparably qualified whites”). “Disparate impact claims ... ‘involve employment practices that are facially neutral in their treatment of different groups but that in fact fall more harshly on one group than another and cannot be justified by business necessity.’ ‘Proof of discriminatory motive ... is not required under a disparate-impact theory.’ ” Anderson v. Zubieta, 180 F.3d 329, 338 (D.C.Cir.1999) (second alteration in original) (citation omitted) (quoting Teamsters, 431 U.S. at 335 n. 15, 97 S.Ct. 1843). To establish disparate impact, a plaintiff “must offer statistical evidence of a kind and degree sufficient to show that the practice in question has caused the exclusion of applicants for jobs or promotions because of their membership in a protected group.” Watson, 487 U.S. at 994, 108 S.Ct. 2777; see also Young v. Covington & Burling LLP, 846 F.Supp.2d 141, 156-57 (D.D.C.2012) (“The plaintiffs evidence of causation must establish that the employment practice ‘select[s] applicants for hire or promotion in a ... pattern significantly different from that of the pool of applicants.’ ” (internal quotation marks omitted) (quoting Albemarle Paper Co. v." }, { "docid": "22494962", "title": "", "text": "Amtrak employee discussing the inadequacies in Amtrak's handling of discrimination complaints. As explained more fully below, the Court finds that plaintiffs have failed to put forward \"significant proof\" that any alleged disparate outcomes in Amtrak's hiring, promoting, and disciplinary decisions are the result of a common mode of exercising discretion. Accordingly, plaintiffs have not satisfied Rule 23(a)'s commonality requirements, and plaintiffs' proposed classes cannot be certified. 1. Dr. Finkelman's Testimony Is Unreliable And Therefore Does Not Support Plaintiffs' Theory of Commonality Plaintiffs assert that the opinions of their industrial-organizational psychology expert, Dr. Jay Finkelman, support their contention that Amtrak's human-resources practices made the company's employment decisions vulnerable to bias. Pls.' Class Cert. Mem., ECF No. 303 at 17-18, 26. Dr. Finkelman opines that individual managers departed from Amtrak's uniform hiring, promotion, and disciplinary policies in a way that \"allowed for subjectivity and the potential for bias or discrimination.\" Finkelman Dep., ECF No. 319-3 at 4-5; see also Finkelman Rep., ECF No. 304-3 at 25 (\"There is a disturbing and pervasive randomness to the evaluation, selection and discipline procedures that Amtrak apparently uses throughout the system. There are few is any controls against intentional or inadvertent bias or discrimination. The process appears to be highly subjective and unstructured.\"). As previously explained, however, Dr. Finkelman's failure to verify the facts supporting his opinions render his report and testimony unreliable under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See supra Part III.C. Therefore, the Court will not consider his report or testimony in evaluating plaintiffs' commonality arguments. 2. Plaintiffs' Statistical Evidence Does Nothing To Establish That Amtrak's Employment Practices Led To Any Alleged Disparate Outcomes Plaintiffs next point to statistical evidence to show that Amtrak's facially-neutral employment policies resulted in a disparate racial impact. Pls.' Class Cert. Mem., ECF No. 303 at 18-19, 26, 30. Specifically, plaintiffs' statistical experts, Dr. Bradley and Dr. Fox, found that African-American individuals were hired and promoted for vacant positions at rates lower than their non-African-American counterparts and were disciplined at rates higher" }, { "docid": "22494963", "title": "", "text": "and discipline procedures that Amtrak apparently uses throughout the system. There are few is any controls against intentional or inadvertent bias or discrimination. The process appears to be highly subjective and unstructured.\"). As previously explained, however, Dr. Finkelman's failure to verify the facts supporting his opinions render his report and testimony unreliable under the standards set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See supra Part III.C. Therefore, the Court will not consider his report or testimony in evaluating plaintiffs' commonality arguments. 2. Plaintiffs' Statistical Evidence Does Nothing To Establish That Amtrak's Employment Practices Led To Any Alleged Disparate Outcomes Plaintiffs next point to statistical evidence to show that Amtrak's facially-neutral employment policies resulted in a disparate racial impact. Pls.' Class Cert. Mem., ECF No. 303 at 18-19, 26, 30. Specifically, plaintiffs' statistical experts, Dr. Bradley and Dr. Fox, found that African-American individuals were hired and promoted for vacant positions at rates lower than their non-African-American counterparts and were disciplined at rates higher than their non-African-American counterparts. See generally Bradley/Fox Rep., ECF No. 304-1. Statistical evidence may, of course, be used to prove discrimination on a disparate-impact theory. See, e.g. , Watson v. Fort Worth Bank and Trust , 487 U.S. 977, 991-1000, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). Dukes did not change this standard, but rather reiterated that statistical correlation cannot substitute for a specific finding of class-action commonality. See Dukes , 564 U.S. at 356, 131 S.Ct. 2541. In other words, \"merely proving that the discretionary system has produced a racial ... disparity is not enough \" where plaintiffs are unable to identify a specific employment practice that is responsible for the alleged disparity. Id. This is particularly true when, as here, the challenged employment practices combine both objective and subjective components. See Watson , 487 U.S. at 994, 108 S.Ct. 2777 (\"Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment" }, { "docid": "22494929", "title": "", "text": "of proxy data when actual data is unavailable or unreliable). It may be that Dr. Bradley and Dr. Fox's sample size of approximately 6,200 was too small, and perhaps a larger sample would have revealed fewer differences between the hiring and promotion of African-American individuals as compared to their non-African-American counterparts. Such a criticism can be brought out in cross-examination and does not render Dr. Bradley and Dr. Fox's methodology so unreliable that it should not be admitted. See, e.g. , Equal Emp't Opportunity Comm'n v. Texas Roadhouse, Inc. , 215 F.Supp.3d 140, 155 (D. Mass. 2016) (\"Even when statistical analysis has involved general population census data to show discriminatory intent, it has not been precluded on Fed. R. Evid. 702 grounds.\"). 3. The Bradley/Fox Report Has Limited Probative Value Amtrak spends the bulk of its brief arguing that plaintiffs' statistical evidence is irrelevant to its class-certification motion because Dr. Bradley and Dr. Fox did not study a particular employment practice or the decisions of any common decision-maker. See Def.'s Bradley/Fox Mem. ECF No. 331-1 at 9-26. As such, Amtrak argues that Dr. Bradley and Dr. Fox's analysis will be unhelpful to the trier of fact because these experts cannot opine that any specific employment practice caused the alleged statistical disparities. Id. at 16. Amtrak notes that plaintiffs' experts could have utilized the job files produced in discovery that contained candidate records, applications, selection criteria, rating sheets, and other records relating to each of the selections contained in the Joint Database. Id. at 7, 11, 36. Plaintiffs respond that the components of Amtrak's selection process \"were not able to be separated for analysis because they were interwoven and overlapping parts of a singular process.\" Pls.' Opp. to Mot. to Exclude Bradley and Fox, ECF No. 342 at 10-15. Plaintiffs further claim that data to do such an analysis was not available. Id. at 10, 15-21. Plaintiffs bear the initial burden of making out a prima facie case of discrimination. Cooper v. Fed. Reserve Bank of Richmond , 467 U.S. 867, 874, 104 S.Ct. 2794, 81 L.Ed.2d 718 (1984). And because" }, { "docid": "22494932", "title": "", "text": "course, detract from the value of such evidence, and evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants would also be relevant. Int'l Bhd. of Teamsters , 431 U.S. at 340, 97 S.Ct. 1843. Importantly, in most cases in which plaintiffs allege a disparate impact, plaintiffs must do more than simply \"show that there are statistical disparities in the employer's work force.\" Watson v. Fort Worth Bank & Trust , 487 U.S. 977, 994, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). Rather, plaintiffs are responsible for \"isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.\" Id. In this respect, plaintiffs' statistical evidence suffers from a number of shortcomings. For example, Dr. Bradley admitted that he did not study whether a particular employment practice at Amtrak caused an adverse impact. Bradley Dep., ECF No. 331-3 at 27. Moreover, although plaintiffs' claim that Amtrak's employment practices are \"incapable of being separated for analysis\" and therefore subject to a bottom-line analysis as to disparate impact, 42 U.S.C. § 2000e-2(k)(1)(B)(i), Dr. Bradley and Dr. Fox's report does nothing to demonstrate this fact. Their report does not grapple with the data contained in Amtrak's job files or explain how it was inadequate to render a statistical analysis as to a particular employment practice. Nonetheless, although the statistical study proffered by plaintiffs' experts may, ultimately, be inadequate to satisfy plaintiffs' burden on the merits, the Court declines to exclude it as irrelevant at this time. As other courts have found, a \"statistical study may fall short of proving the plaintiff's case, but still remain relevant to the issues in dispute.\" Obrey v. Johnson , 400 F.3d 691, 695 (9th Cir. 2005). For example, in Obrey , the defendant challenged the admission of the plaintiff's expert report because, inter alia , the statistical analysis was irrelevant to plaintiff's claims that the defendant engaged in discriminatory hiring practices. Id. at 694. The statistical analysis in that case only analyzed the race of the managers selected by the employer as compared to" }, { "docid": "683266", "title": "", "text": "U.S. at 336, 97 S.Ct. at 1855 (footnote omitted). One of the most widely used and effective means of establishing a pattern or practice of discrimination is by the use of statistics. As the Court noted both in Teamsters and in Hazelwood School District v. United States, 433 U.S. 299, at 306-309, 97 S.Ct. 2736, at 2741-2742, 53 L.Ed.2d 768 (1977), statistics can be an important source of proof in employment discrimination cases. This is due to the fact that: absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which employees are hired. Evidence of longlasting and gross disparity between the composition of a work force and that of the general population thus may be significant even though § 703(j) makes clear that Title VII imposes no requirement that a work force mirror the general population. Teamsters, supra, 431 U.S. at 339 n.20, 97 S.Ct. at 1856-57. Furthermore, “[w]here gross statistical disparities can be shown, they alone may in a proper case constitute prima facie proof of a pattern or practice of discrimination. Teamsters, supra, 431 U.S. at 339-340 [97 S.Ct., at 1856].” Hazelwood, supra, 433 U.S at 307, 97 S.Ct. at 2741. However, the Court in Teamsters went on to state that: [w]e caution only that statistics are not irrefutable; they come in infinite variety and, like any other kind of evidence, they may be rebutted. In short, their usefulness depends on all of the surrounding facts and circumstances. Teamsters, supra, 431 U.S. at 340, 97 S.Ct. at 1856-57. The Court also noted that the value of statistics may be lessened where there are “considerations such as small sample size” or there is “evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants . . . Teamsters, supra, at 340 n.20, 97 S.Ct. at 1857. Defendants contend, at pp. 14-16 of their Supplemental Memorandum of Law, that cases such as Teamsters and" }, { "docid": "22494967", "title": "", "text": "320-4 ¶¶ 14-24. When asked about his approach, Dr. Bradley conceded that his aggregated analysis would not permit any conclusions about the potential causes of any racially-disparate impact seen in the statistical analysis: Q. Wouldn't you want to ... try to find the jobs that are similar to each other and aggregate them? A. At some point once you you've got adverse impact, you want to try and drill down and find out where the problems are occurring. Q. Did you do that in your study, try to drill down? A. I have not done that. Q. Why not? A. I wasn't asked to do that in this particular case. Bradley Dep., ECF No. 331-3 at 32. Other courts have rejected Dr. Bradley's expert opinions for similar reasons. See Anderson v. Westinghouse Savannah River Co. , 406 F.3d 248, 262-63 (4th Cir. 2005) (district court did not err in excluding Dr. Bradley's opinions because his statistical analysis did not compare similarly-situated employees and therefore was not probative of whether or not there was a disparate impact). Indeed, Amtrak's statistical expert-whose qualifications and opinions plaintiffs do not challenge-found that there was no consistent pattern of adverse outcomes for African-American individuals when decisions were analyzed based on job-specific selection criteria. See Expert Rep. of Donald Deere (\"Deere Rep.\"), ECF No. 328-5 at 28-32. Nor did Dr. Bradley and Dr. Fox consider objective factors like seniority, previous work experience, or education in examining Amtrak's hiring and promotion decisions. See Bradley Dep., ECF No. 331-3 at 27-29. For example, when asked whether his analysis took into consideration a particular individual's work experience in assessing whether the selection process had an adverse impact, Dr. Bradly admitted that it did not. Accordingly, he acknowledged that it was \"possible\" that his findings of disparate impact could be explained by a wholly \"legitimate factor\" that played \"a decisive role\" in the decision-maker's employment selection. Id. at 28. For this reason, too, plaintiffs' statistical evidence does not demonstrate commonality. See Garcia v. Johanns , 444 F.3d 625, 635 (D.C. Cir. 2006) (district court acted within its discretion in rejecting" }, { "docid": "22494931", "title": "", "text": "plaintiffs allege a system-wide pattern or practice of discrimination, plaintiffs have \"to prove more than the mere occurrence of isolated or 'accidental' or sporadic discriminatory acts.\" Int'l Bhd. of Teamsters v. United States , 431 U.S. 324, 336, 97 S.Ct. 1843, 52 L.Ed.2d 396 (1977). Rather, plaintiffs have \"to establish by a preponderance of the evidence\" that racial discrimination was Amtrak's \"standard operating procedure-the regular rather than the unusual practice.\" Id. In a case such as this, then, statistical data is relevant because it can be used to establish a general discriminatory pattern in an employer's hiring or promotion practices. As the Supreme Court explained, [s]tatistics showing racial or ethnic imbalance are probative ... because such imbalance is often a telltale sign of purposeful discrimination; absent explanation, it is ordinarily to be expected that nondiscriminatory hiring practices will in time result in a work force more or less representative of the racial and ethnic composition of the population in the community from which the employees are hired. Considerations such as small sample size may, of course, detract from the value of such evidence, and evidence showing that the figures for the general population might not accurately reflect the pool of qualified job applicants would also be relevant. Int'l Bhd. of Teamsters , 431 U.S. at 340, 97 S.Ct. 1843. Importantly, in most cases in which plaintiffs allege a disparate impact, plaintiffs must do more than simply \"show that there are statistical disparities in the employer's work force.\" Watson v. Fort Worth Bank & Trust , 487 U.S. 977, 994, 108 S.Ct. 2777, 101 L.Ed.2d 827 (1988). Rather, plaintiffs are responsible for \"isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.\" Id. In this respect, plaintiffs' statistical evidence suffers from a number of shortcomings. For example, Dr. Bradley admitted that he did not study whether a particular employment practice at Amtrak caused an adverse impact. Bradley Dep., ECF No. 331-3 at 27. Moreover, although plaintiffs' claim that Amtrak's employment practices are \"incapable of being separated for analysis\" and therefore subject to a bottom-line analysis" }, { "docid": "22494966", "title": "", "text": "adverse impact on them that was the same criteria? A. Well, it may not be the same criteria. You get differences I think like we do across all of these jobs in a particular craft. And blacks are showing a smaller rate and it is statistically significant, that indicates to me there's some problem somewhere and we need to investigate where that problem is. Id. at 32-33. In other words, plaintiffs' statistical experts do little more than establish that African-American candidates are underrepresented in Amtrak's hiring and promotion decisions, and overrepresented in Amtrak's disciplinary decisions. This is precisely the sort of statistical evidence that was rejected as insufficient in Dukes . See Dukes , 564 U.S. at 356-57, 131 S.Ct. 2541. Moreover, in conducting their analysis, Dr. Bradley and Dr. Fox examined employment decisions across four craft groups, each of which contain numerous positions with different responsibilities, that are overseen by different supervisors, that are in different locations, and that are covered by different labor unions. See Expert Rep. of Jerrold A. Glass, ECF No. 320-4 ¶¶ 14-24. When asked about his approach, Dr. Bradley conceded that his aggregated analysis would not permit any conclusions about the potential causes of any racially-disparate impact seen in the statistical analysis: Q. Wouldn't you want to ... try to find the jobs that are similar to each other and aggregate them? A. At some point once you you've got adverse impact, you want to try and drill down and find out where the problems are occurring. Q. Did you do that in your study, try to drill down? A. I have not done that. Q. Why not? A. I wasn't asked to do that in this particular case. Bradley Dep., ECF No. 331-3 at 32. Other courts have rejected Dr. Bradley's expert opinions for similar reasons. See Anderson v. Westinghouse Savannah River Co. , 406 F.3d 248, 262-63 (4th Cir. 2005) (district court did not err in excluding Dr. Bradley's opinions because his statistical analysis did not compare similarly-situated employees and therefore was not probative of whether or not there was a disparate" }, { "docid": "9419048", "title": "", "text": "487 U.S. at 994, 108 S.Ct. 2777 (plurality opinion) (“Especially in cases where an employer combines subjective criteria with the use of more rigid standardized rules or tests, the plaintiff is in our view responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.”). While Dr. Bradley discussed discipline, training, and work area experience in his rebuttal report, he did so only to show that these factors were “racially tainted” and should not be considered in his plant-wide bottom-line analysis. He did not demonstrate that each factor caused a racial disparity in promotion decisions. Second, the plaintiffs’ statistical evidence assumed that all applicants were qualified for promotion to each available position. We have observed that “ ‘[statistics based on an applicant pool containing individuals lacking minimal qualifications for the job would be of little probative value.’ ” Morgan v. United Parcel Serv. of Am., Inc., 380 F.3d 459, 464 (8th Cir.2004) (quoting Watson, 487 U.S. at 997, 108 S.Ct. 2777 (plurality opinion)). This case demonstrates the problem. The plaintiffs, for example, identified a disparate impact in supervisor hiring based on a comparison between the racial composition of Nucor supervisors, as a group, and the racial composition of all employees categorized as craft workers or operatives. As a result, all employees in those categories, including those holding lower-level jobs like “shipperfioader” and “grade three crane operator,” were assumed to be eligible for promotion to supervisor, even though supervisors during the relevant time period were promoted only from pay grades six through nine. Because the plaintiffs failed to show that their statistical “applicant pools” contained only individuals who were at'least minimally qualified for the promotions in question, their statistical evidence of a bottom-line disparity in promotions has little force. The plaintiffs argue that even if their statistical evidence is inadequate to create a submissible case of disparate impact, summary judgment was improper because they introduced anecdotal evidence of racial disparities in the membership of various work crews at Nucor. But a bare assertion of racial imbalances in the workforce is not enough to establish" }, { "docid": "22494928", "title": "", "text": "estimate within a margin of error.\" Id. at 29-30. While Amtrak points to potential problems with Dr. Bradley and Dr. Fox's extrapolation techniques, it fails to establish that these experts used a methodology so unreliable as to warrant exclusion of their report. There is no evidence that Dr. Bradley and Dr. Fox cherry-picked the data points in constructing the benchmarks for African-American availability where that data was not kept in the regular course by Amtrak. It is, of course, clear that the experts' extrapolated benchmarks in areas where no applicant flow data was available is less precise than Amtrak's actual applicant flow data. It is also clear, however, that plaintiffs may rely on reliable estimates when actual data is unavailable. See General Elec. Co. v. Joiner , 522 U.S. 136, 146, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997) (stating the well-established principle that \"[t]rained experts commonly extrapolate from existing data\"); see generally Ramona L. Paetzold & Steven L. Willborn, The Statistics of Discrimination: Using Statistical Evidence in Discrimination Cases § 4.03 (2014) (describing the use of proxy data when actual data is unavailable or unreliable). It may be that Dr. Bradley and Dr. Fox's sample size of approximately 6,200 was too small, and perhaps a larger sample would have revealed fewer differences between the hiring and promotion of African-American individuals as compared to their non-African-American counterparts. Such a criticism can be brought out in cross-examination and does not render Dr. Bradley and Dr. Fox's methodology so unreliable that it should not be admitted. See, e.g. , Equal Emp't Opportunity Comm'n v. Texas Roadhouse, Inc. , 215 F.Supp.3d 140, 155 (D. Mass. 2016) (\"Even when statistical analysis has involved general population census data to show discriminatory intent, it has not been precluded on Fed. R. Evid. 702 grounds.\"). 3. The Bradley/Fox Report Has Limited Probative Value Amtrak spends the bulk of its brief arguing that plaintiffs' statistical evidence is irrelevant to its class-certification motion because Dr. Bradley and Dr. Fox did not study a particular employment practice or the decisions of any common decision-maker. See Def.'s Bradley/Fox Mem. ECF No. 331-1" } ]

[ { "docid": "438213", "title": "", "text": "and that the controversy was therefore non justiciable. We hold that a justiciable controversy is presented and we resolve that controversy in favor of the defendants. The facts are not in dispute. During the course of collective bargaining negotiations in 1959, the ILA objected to the employers’ use of pre-loaded cargo containers, a form of automation, in the Port of New York. The use of containers reduced the employment of ILA members and thereby adversely affected that portion of the ILA’s income that is derived from a dues check-off based on the hours worked by each employee. After extensive discussions the employers agreed to pay 28 cents per gross ton of “containerized’ freight handled through the Port of'New York into a fund to be administered by trustees appointed by the ILA and the employers. The ILA, however, demanded that part of the fund be paid to it as compensation for its loss of revenue. This demand was rejected by the employers on the ground that such a payment would violate Section 302. In an effort to avoid labor strife over the issue the parties stipulated that 10% of the moneys paid to the trustees would be put in escrow pending a determination by a federal court or the United States Attorney General of the legality of payment to the ILA. The parties agreed that if payment was declared illegal, they would renegotiate the disposition of the escrow fund. The Attorney General refused to render an opinion, and the union instituted this suit for a declaratory judgment. I. A claim for declaratory relief must present a dispute that is “definite and concrete, touching the legal relations of parties having adverse legal interests.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 464, 81 L.Ed. 617 (1937). We think the present controversy satisfies that standard. The parties have a bona fide controversy concerning the application of Section 302 to a particular, definite agreement. They stand in a legal relationship in which their legal interests are adverse. Resolution of the controversy will determine the ILA’s legal right to secure" } ]

[ { "docid": "2610303", "title": "", "text": "1409 (1960). Judicial review of an arbitrator’s decision is very limited so long as the arbitrator’s award is drawn from the collective bargaining agreement. United Steelworkers of America v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597-599, 80 S.Ct. 1358, 1361-1362, 4 L.Ed.2d 1424 (1960). An arbitrator may properly incorporate the past practices of the parties or the “common law of the shop” into the written collective bargaining agreement where that document is silent or ambiguous on a matter, Detroit Coil Co. v. International Ass’n of Machinists & Aerospace Workers, Lodge No. 82, 594 F.2d 575, 579 (6th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979), but an illegal collective bargaining agreement will not be en forced. Hairston v. McLean Trucking Co., 520 F.2d 226, 235 (4th Cir. 1975); cf. Chattanooga Mailers Union, Local No. 92 v. Chattanooga News-Free Press Co., 524 F.2d 1305 (6th Cir. 1975) (illegality of one clause in a collective bargaining agreement did not render the whole agreement invalid). Because the practice of checking off union dues without written authorization and the implied agreement to check off are illegal, and the Union has not overcome the presumption that illegal acts are without legal effect, the arbitrator exceeded his authority by incorporating the practice or the agreement into the collective bargaining agreement here. The arbitrator’s award depended on the illegal past practice, thus was not based on the collective bargaining agreement, and the District Court was correct in setting it aside. For the foregoing reasons, the order of the District Court is affirmed. . For the general proposition that Section 302 was designed to prevent more than deliberate or willful violations, see e. g., International Longshoremen’s Ass’n v. Seatrain Lines, Inc., 326 F.2d 916, 919 (2d Cir. 1964); Employee’s Independent Union v. Wyman Gordon Co., 314 F.Supp. 458, 460 (N.D.Ill.1970). SPIEGEL, District Judge, dissenting. I respectfully dissent. Because the District Court found no intent to violate the law, and because any violation here of section 302 of the Labor Management Relations Act (LMRA) involved neither corruption nor an attempt by the" }, { "docid": "18715171", "title": "", "text": "Cir. 1981), the employer, Jackson Purchase, had a collective bargaining agreement with the union. The agreement was silent on the question of dues checkoff, but for 16 years the company deducted dues from employee paychecks and paid them over to the union without written authorization from the affected employees. Jackson Purchase unilaterally terminated this practice. The union protested and the matter was submitted to arbitration. The arbitrator concluded that even though the practice had violated federal law, it had created an implied agreement between the employer and the union which could not be unilaterally terminated. The arbitrator ordered Jackson Purchase to continue to check off union dues upon receipt of proper authorization cards from the employees. The District Court, however, set the award aside. On appeal, the Sixth Circuit held that the only implied agreement between the parties was an agreement to check off dues without written authorization. Id. at 267. So viewed, “[t]he arbitrator’s award depended on the illegal past practice, thus was not based on the collective bargaining agreement, and the District Court was correct in setting it aside.” Id. at 268. The Jackson Purchase opinion, therefore, only addresses invalid contractual provisions. The opinion says nothing about an arbitrator’s power to award a union the dues it lost as a consequence of the employer’s breach of a valid collective bargaining agreement. The Post also relies on International Longshoremen’s Association v. Seatrain Lines, Inc., 326 F.2d 916 (2d Cir.1964). In that case, a longshoremen’s union had objected, during the course of collective bargaining negotiations, to the use by several employers of pre-loaded cargo containers, a form of automation which reduced the workforce. The employers agreed to pay 28 cents per gross ton of “containerized” freight handled through the Port of New York into a fund to be administered by trustees appointed by both the union and the employers. The union, however, also demanded that part of the fund be paid directly to it as compensation for its loss of revenue. The employers insisted that such a provision would be illegal and refused to negotiate. Instead, the parties stipulated that" }, { "docid": "8535205", "title": "", "text": "OPINION EDWARD R. BECKER, District Judge. I. Preliminary Statement This is a labor arbitration case which comes before us on cross motions for summary judgment. The arbitrator awarded $29,500 in damages to the defendant Building Service Employees International Union, Local 252, AFL-CIO (Union). These damages resulted from the failure of the plaintiffs, a group of nursing home owners (Employers) whose employees were at one time represented by the Union, to abide by a collective bargaining agreement. The facts are not in dispute. And. despite the ingenuity of Employers’ counsel, neither is liability, for the obligation of the Employers to respond in damages was established in a state court proceeding which culminated in a decision by the Pennsylvania Supreme Court. That court found the Employers in breach of a collective bargaining agreement and ordered that damages be determined by arbitration. In the present motions we are asked by the Union to enforce and by the Employers to vacate the award which resulted from the mandated arbitration proceeding. The issue is whether the award should be set aside because: (1) it was beyond the power of the arbitrator; or (2) it violated the national labor policy; or (3) it was arrived at by reasoning that was so arbitrary and capricious as to violate due process. After reciting the facts in detail and disposing of the first two objections of the Employers, we will address this latter contention which we view as the principal and most difficult issue in the case. II. The Undisputed Facts On August 1, 1959, the Employers and the Union entered into a collective bargaining agreement for a period of two years. The contract included, inter alia, provisions for recognition of the union, union security, dues checkoff, contributions to a medical center, and a grievance procedure culminating in submission of grievances and disputes to arbitration. The dues checkoff provision also stipulated that the Union would submit signed authorization cards to the Employers before the Employers would be obligated to withhold the employee’s union dues. This agreement expired on July 31, 1961 and a prolonged strike ensued. On January 23," }, { "docid": "18715169", "title": "", "text": "reasonable view of these facts suggests any improper influence. Our interpretation of the § 302 exceptions is consistent with the treatment these provisions have received in other courts. In United Steelworkers of America v. United, States Gypsum Co., 492 F.2d 713 (5th Cir.1971), cert. denied, 419 U.S. 998, 95 S.Ct. 312, 42 L.Ed.2d 271 (1974), for example, the court held that an arbitrator’s award requiring a company to reimburse a union for dues it had lost was lawful. In that case, United Cement Company, Inc., the owner of a lime plant, had a collective bargaining agreement with its production and maintenance employees. United sold the plant to United States Gypsum Company. Gypsum hired all but three of United’s former employees, and began operating the plant, but did not check off union dues, as was required by the collective bargaining agreement. The union filed a grievance. The arbitrator held that the collective bargaining agreement was still in effect. As one part of the remedy for this violation, the arbitrator ordered Gypsum to pay the union dues that would have been collected had the company continued to check off dues from the employees’ salaries. On appeal, the Fifth Circuit specifically rejected a challenge to the lawfulness of this award. “Since the purpose of § 302(a) is to protect employers from extortion and to insure honest, uninfluenced representation of employees, and in view of the exclusion from its coverage of an arbitrator’s award we hold that § 302(a) does not render the arbitrator’s award here unenforceable.” Id. at 734. The Post suggests that the Gypsum case is distinguishable from the instant case because the Gypsum employees never revoked their dues authorizations; in contrast, the Post columnists specifically revoked their authorizations. Br. for Appellant at 25-26. No such express limitation, however, appears in the Gypsum court’s holding. The Post relies principally on two cases for its contention that awards of back union dues are unlawful under § 302. We find neither decision completely apposite. In Jackson Purchase Rural Electric Cooperative Association v. Local Union 816, International Brotherhood of Electrical Workers, 646 F.2d 264 (6th" }, { "docid": "22777969", "title": "", "text": "Mr. Justice Stewart delivered the opinion of the Court. These cases arise from a series of strikes along the Philadelphia waterfront. The petitioner union, representing the longshoremen involved in those strikes, had entered into a collective bargaining agreement in 1959 with the respondent, an association of employers in the Port of Philadelphia. The agreement included provisions for compensating longshoremen who are told after they report for duty that they will not be needed until the afternoon. The union construed those “set-back” provi sions to mean that, at least in some situations, longshoremen whose employment was postponed because of unfavorable weather conditions were entitled to four hours’ pay; the association interpreted the provisions to guarantee no more than one hour’s pay under such circumstances. In April 1965, when this disagreement first became apparent, the parties followed the grievance procedure established by their collective bargaining contract and submitted the matter to an arbitrator for binding settlement. On June 11 the arbitrator ruled that the association’s reading of the set-back provisions was correct. In July, however, a group of union members refused to unload a ship unless their employer would promise four hours’ pay for having set back their starting time from 8 a. m. to 1 p. m. The union sought to arbitrate the matter, but the association viewed the original arbitrator’s decision as controlling and instituted proceedings in the District Court to enforce it. The complaint alleged that the union had refused “to abide by the terms of the Arbitrator’s Award . . . resulting in serious loss and damage to [the] Employer . . . and to the Port of Philadelphia.” This refusal, the complaint charged, constituted “a breach of the applicable provisions of the current Collective Bargaining Agreement between the P. M. T. A. and the Union.” The complaint concluded with a prayer “that the Court set an immediate hearing and enter an order enforcing the Arbitrator’s Award, and that plaintiff may have such other and further relief as may be justified.” Before the court could take any action, the employer had met the union’s demands and the men" }, { "docid": "2610314", "title": "", "text": "agreement to check off, as it has been implemented, has never caused any injury to either the employer or the employees. In fact, as found by the arbitrator, it has been of benefit to the employees, who relied on this method of paying their union dues. The specific public interest promoted by enforcement of this agreement is threefold: (1) public policy favors the peaceful resolution of labor disputes through arbitration, Steelworkers trilogy, supra; (2) public policy encourages the practice and procedure of collective bargaining, section 1, National Labor Relations Act, 29 U.S.C. § 151; (3) public policy endorses union security, section 8(a)(3), National Labor Relations Act, 29 U.S.C. § 158(a)(3). Here the arbitrator ordered the employer to resume check off as written authorizations are received; public policy is served by enforcing the arbitrator’s award. The parties bargained years ago for the dues check off, and enforcing their agreement promotes the practice of collective bargaining. A union security clause is part of the parties’ written agreement; continuation of the check off supplements and complements that clause. The majority declares that Local 816 did not have a justified expectation that its agreement with Jackson Purchase was lawful, nor was it misled by Jackson Purchase. Arguably, however, the union did have a justified expectation, based on many years’ experience, that the employer would continue the check off practice. We have no way of knowing whether the union was misled by the employer. In all probability, had the employer announced its intention with respect to the dues check off at the time of the last collective bargaining negotiations, the union would have bargained for inclusion of the practice in the written agreement. As to the seriousness of the misconduct, the majority admits that it was not serious but dismisses that conclusion with the remark that it is entitled to little weight. Opinion at 268. I conclude, however, that relatively minor misconduct such as we have here should not be determinative in the face of the strong public policies which have been outlined. I do not believe that the public interest or the interests of" }, { "docid": "23199838", "title": "", "text": "painters in the bargaining agreements, the award improperly modifies and enlarges their terms under certain language in both' agreements, as follows: “It is understood and agreed, however, that proposals to add to or change this contract shall not be arbi-trable and that no proposal to modify, amend or terminate this contract may be referred for arbitration under this Section; and no arbitrator shall have any power to amend or modify this contract. * * *” Holly maintains that Torrington Co. v. Metal Products Workers Union, 362 F.2d 677 (2d Cir. 1966), requires reversal. In Torrington the dispute was whether the employer was obligated to grant paid time-off for voting as had been its practice for years. Prior to negotiations for the collective bargaining agreement, Torrington announced that it was discontinuing the time-off benefit, and, at the contract negotiations, the Union failed in its attempt to have this benefit specifically included in the contract. After the new contract went into effect, Torrington, following its earlier announcement, refused to grant paid time for voting. The Union filed a grievance, and the arbitrator determined that the time-off benefit should be implied as part of the new collective bargaining contract. He concluded that, because of the long-standing nature of the benefit, the burden of showing a change of this policy should rest upon the employer and that the employer had not met its burden by simply pointing to the union’s failures during negotiations. The arbitration clause in the Torring-ton agreement contained the same “boiler-plate” prohibitions of awards which “add to,” “delete,” or “modify” the agreement as did the contracts in the instant case. Relying on this clause, the Court of Appeals for the Second Circuit overturned the award. That Court’s interpretation of the history of the negotiations was that the parties agreed not to include the benefit in the new contract, and it held that there was no requirement that the company should have secured agreement for the abandonment of the previously followed practice. See 362 F.2d at 681-82. Holly, relying heavily upon the negotiations leading to the agreement of 1965, insists that the" }, { "docid": "2610295", "title": "", "text": "for 16 years prior to 1978 Jackson Purchase deducted dues from employee paychecks and paid them over to Local 816 without written authorization from the affected employees. Jackson Purchase unilaterally terminated this practice in 1978. Local 816 protested and the matter was submitted to arbitration. The arbitrator found that the practice violated federal law. However, he concluded that the illegality was relevant only between “the federal government and each of the parties separately and should not affect [the] consensual relationship between [employer and union].” As between the parties the arbitrator concluded that the fact that the practice had continued for 16 years created an implied agreement to check off union dues between Jackson Purchase and Local 816, which had become a part of the collective bargaining agreement and was therefore not subject to unilateral termination. He ordered Jackson Purchase to continue to check off union dues upon receipt of proper authorization cards from the employees. The District Court set this arbitration award aside, holding that since the check off violated section 302(a) it could not be enforced. Section 302(a)(1) of the Labor Management Relations Act, 29 U.S.C. § 186(a)(1), states that [i]t shall be unlawful for any employer ... to pay, lend, or deliver, or agree to pay, lend, or deliver, any money or any other thing of value to any representative of any of his employees who are employed in an industry affecting commerce. Subsection (c)(4) creates an exception with respect to money deducted from the wages of employees in payment of membership dues in a labor organization: Provided, That the employer has received from each employee, on whose account such deductions are made, a written assignment which shall not be irrevocable for a period of more than one year, or beyond the termination date of the applicable collective bargaining agreement, whichever occurs sooner. (Emphasis in the statute) Subsection (d) makes it a misdemeanor willfully to violate the above provisions. Local 816 first argues that because subsection (d) makes it a crime willfully to violate § 302, a willful violation is the only violation that Congress contemplated. Because the" }, { "docid": "14237479", "title": "", "text": "on which the company unilaterally granted a 60 per hour increase, and calculated on a 40 per hour increase from October 10, 1966 until the date of payment. Concerning holidays, which were also subject to negotiation under the reopener, the arbitrator decided that no changes would have been made and therefore awarded no relief in this regard. Seniority issues were raised by grievances 2 and 4. After examining the practices prevalent prior to Gypsum’s' take-over, the arbitrator concluded both that they were not actively followed previously and that the proof was insufficient to establish a violation anyway. He therefore held for the company on these two grievances. The remaining grievance concerned Gypsum’s failure to check off union dues. Holding this provision of the agreement also binding on Gypsum, the arbitrator ordered the company to pay the union the amount which should have been paid from April 1965 until December 1966. Payment was to be made by the company without deductions from the wages of any employees. Finally, the arbitrator ordered Gypsum to pay 6% interest, compounded quarterly, on both the wage and check off awards from April 1, 1965 until the date of payment. The union then returned to the district court seeking an order enforcing the award. On the basis of John Wiley & Sons, Inc. v. Livingston, supra, the Court agreed with the arbitrator that substantive contractual provisions of a predecessor’s collective bargaining agreement could govern a successor employer. Thus the court upheld the finding that Gypsum was required to negotiate with the union pursuant to the wage reopener. But although in accord with the arbitrator that it was too late to negotiate, the court concluded that the arbitrator’s alternative remedy could not not be enforced. This decision appears based on two propositions: (1) that a reopener provision confers only a right to negotiate and that the arbitration clause of the contract would not permit the arbitrator to, in effect, make an agreement for the parties; and (2) that this remedy violated the principle of free collective bargaining as explained in H. K. Porter Co. v. NLRB, 379" }, { "docid": "21563360", "title": "", "text": "upon the carriers, not on the stevedoring companies. The bitter collective bargaining conflict between the carriers and the International Longshoremen’s Association (ILA) sparked by the introduction of containerized methods of cargo handling was finally resolved in 1968 after a lengthy strike and the intervention of a presidential mediator. The labor accord reached required the union to relinquish its demands for limits on containerization in exchange for, among other things, the establishment of a program of enhanced fringe benefits to compensate longshoremen for the effects of the job displacement caused by containerization. Thus, the advent of containerization and the execution of the 1968 labor contract brought about significant new developments in the carriers’ status in the Port of New York. From 1968 to the present the carriers not only continued to negotiate the terms and conditions of longshore employment and the level of longshore employee benefits, but also directly undertook the obligation to pay — and did in fact pay — the contributions necessary to fund these benefits. The key feature of the assessment system in effect in the Port of New York for the past two decades is that the obligation for longshore fringe benefit assessments is placed directly upon the vessel carriers based on the tons of cargo loaded and unloaded by longshoremen from their vessels. Korea and Delta engaged in steamship carrier operations at the Port from 1967 to 1985 and 1978 to 1983 respectively, undertaking a variety of operations which included the loading and unloading of their general cargo and container vessels. Neither company directly employed its own labor force to service its ships, and neither operated its own marine terminal facility. When appellants’ ships entered the Port, they called at terminals operated by the stevedoring companies where their vessels loaded and discharged their cargo with the aid of longshoremen directly employed by the stevedoring companies. B. Collective Bargaining Agreements Operations at the Port are carried out under two collective bargaining agreements — (1) the so-called “master contract,” encompassing operations at major ports on the Atlantic and Gulf coasts of the United States, and (2) a local" }, { "docid": "14237480", "title": "", "text": "compounded quarterly, on both the wage and check off awards from April 1, 1965 until the date of payment. The union then returned to the district court seeking an order enforcing the award. On the basis of John Wiley & Sons, Inc. v. Livingston, supra, the Court agreed with the arbitrator that substantive contractual provisions of a predecessor’s collective bargaining agreement could govern a successor employer. Thus the court upheld the finding that Gypsum was required to negotiate with the union pursuant to the wage reopener. But although in accord with the arbitrator that it was too late to negotiate, the court concluded that the arbitrator’s alternative remedy could not not be enforced. This decision appears based on two propositions: (1) that a reopener provision confers only a right to negotiate and that the arbitration clause of the contract would not permit the arbitrator to, in effect, make an agreement for the parties; and (2) that this remedy violated the principle of free collective bargaining as explained in H. K. Porter Co. v. NLRB, 379 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970). The court upheld the arbitrator’s determination that the check off provision was binding on Gypsum and that the union was entitled to the amount of dues which should have been paid from April 1965 until December 1966. However, the court refused to enforce the arbitrator’s direction that the company pay the award without corresponding deductions from employees’ wages, reasoning that to sustain this ruling would require the company to violate § 302(a) of the Act, 29 U.S.C. § 186(a). The court accordingly modified the award to the extent that employees still with the company must pay the dues from future wages while amounts due from those no longer employed were to be paid by the company. The court also modified the manner in which the arbitrator ordered interest paid although it did conclude that this aspect of the award was within the arbitrator’s remedial authority. The court then added a twist of its own. The union was given the option of withdrawing its insistence on lost" }, { "docid": "18715162", "title": "", "text": "Opinion for the Court filed by Senior Circuit Judge McGOWAN. McGOWAN, Senior Circuit Judge: In this case, we must decide whether § 302 of the Labor Management Relations Act (“LMRA”) precludes an arbitrator from ordering an employer to reimburse a union for dues lost as a consequence of the employer’s breach of a collective bargaining agreement. The District Court upheld such an arbitration award. We hold that the LMRA does not foreclose such an award, and therefore affirm. I. Background The collective bargaining agreement at issue in this case was first negotiated in 1947. The agreement, between The Washington Post (“Post”) and the Washington-Baltimore Newspaper Guild, Local 35 (“Guild”) generally covered all Post employees except executives. The 1947 agreement, however, also excluded one cartoonist and one columnist from the bargaining unit. In 1973 the Post founded a “Writers Group,” consisting of both employees and non-employees. Through this organization, the Post marketed the columns of the members of the Group directly to the purchasing newspapers, rather than through intermediate syndicates. Between 1973 and 1979, both the Post and the Guild proceeded under the assumption that columnists employed by the Post whose work was syndicated through the Writers Group were part of the collective bargaining unit. In 1979 and 1980, the Post’s Deputy Managing Editor advised four Post columnists (Richard Cohen, Thomas McCarthy, William Raspberry, and Thomas Shales) that they were excluded from the bargaining unit under the collective bargaining agreement. All four employees resigned from the Guild, revoked their authorizations for the payment of union dues from their salaries, and refused to pay further union dues. The Guild filed a grievance. On October 19, 1983, an arbitrator sustained the grievance. The arbitrator held that the collective bargaining agreement was intended only to exclude columnists who made an arrangement with the Post to have their columns published through an independent national syndicate. Thus, the four columnists, whose columns were syndicated by the Post itself, remained within the bargaining unit. As a remedy, the arbitrator ordered the Post to reimburse the Guild for its loss of dues. Arbitration Decision at 7, Appendix (“App.”)" }, { "docid": "2610304", "title": "", "text": "union dues without written authorization and the implied agreement to check off are illegal, and the Union has not overcome the presumption that illegal acts are without legal effect, the arbitrator exceeded his authority by incorporating the practice or the agreement into the collective bargaining agreement here. The arbitrator’s award depended on the illegal past practice, thus was not based on the collective bargaining agreement, and the District Court was correct in setting it aside. For the foregoing reasons, the order of the District Court is affirmed. . For the general proposition that Section 302 was designed to prevent more than deliberate or willful violations, see e. g., International Longshoremen’s Ass’n v. Seatrain Lines, Inc., 326 F.2d 916, 919 (2d Cir. 1964); Employee’s Independent Union v. Wyman Gordon Co., 314 F.Supp. 458, 460 (N.D.Ill.1970). SPIEGEL, District Judge, dissenting. I respectfully dissent. Because the District Court found no intent to violate the law, and because any violation here of section 302 of the Labor Management Relations Act (LMRA) involved neither corruption nor an attempt by the company to dominate the union, I believe the original agreement to check off may be enforced through the past practice doctrine. To the facts as set out in the majority opinion, I would add the following: The collective bargaining agreement, in Article IV, contains a union security clause (Record, Ex. A attached to doc. 10). Subsequent to the employer’s unilateral termination of the check-off practice in 1978, after the current agreement was executed, the union presented written authorizations which the employer refused to honor. The District Court set aside the arbitration award because it deemed the performance of the agreement to check off to be a violation of federal law. However, the District Court had first determined that the agreement itself was lawful because there was no intent to violate section 302. The issue on appeal, as I see it, is whether a past practice based on a lawful agreement may be enforced by an arbitrator as part of a collective bargaining agreement. I conclude that the check-off practice in this case may be so" }, { "docid": "18715172", "title": "", "text": "was correct in setting it aside.” Id. at 268. The Jackson Purchase opinion, therefore, only addresses invalid contractual provisions. The opinion says nothing about an arbitrator’s power to award a union the dues it lost as a consequence of the employer’s breach of a valid collective bargaining agreement. The Post also relies on International Longshoremen’s Association v. Seatrain Lines, Inc., 326 F.2d 916 (2d Cir.1964). In that case, a longshoremen’s union had objected, during the course of collective bargaining negotiations, to the use by several employers of pre-loaded cargo containers, a form of automation which reduced the workforce. The employers agreed to pay 28 cents per gross ton of “containerized” freight handled through the Port of New York into a fund to be administered by trustees appointed by both the union and the employers. The union, however, also demanded that part of the fund be paid directly to it as compensation for its loss of revenue. The employers insisted that such a provision would be illegal and refused to negotiate. Instead, the parties stipulated that 10% of the moneys paid to the trustees would be put in escrow pending a determination by a federal court or the United States Attorney General on the legality of the payment to the union. Thereafter, the union filed suit for a declaratory judgment. The District Court dismissed the suit as not presenting a justiciable case or controversy. The Second Circuit addressed the merits of the case, and held the proposed agreement unlawful. The court noted, in particular, that the agreement could not be considered a settlement of a claim within the meaning of § 302(c)(2). Id. at 919. In addition, the parties did not argue that the payments constituted an authorized dues checkoff under § 302(c)(4). Id. at 920. Thus, Seatrain is not to the contrary of our holding today. The Seatrain court was not forced to determine whether any conflict existed between § 302(c)(2) and § 302(c)(4). III. Conclusion The rule we adopt in this case, although novel in the sense that we have not previously addressed the question, is straightforward and grounded" }, { "docid": "2610294", "title": "", "text": "CORNELIA G. KENNEDY, Circuit Judge. Local 816 appeals the order of the District Court setting aside a labor arbitration award in its favor. The facts are undisputed, and the case was decided on cross-motions for summary judgment. The issues on appeal are 1) whether it is a violation of Section 302(a)(1) and (c)(4) of the Labor Management Relations Act, 29 U.S.C. § 186(a)(1) and (c)(4), for an employer to check off, or agree to check off, union dues from employee paychecks without written authorization from the employees where there is no intent to violate federal law, and 2) if so, whether a long-continued practice of checking off union dues in violation of those sections may nonetheless be enforced by an arbitrator as part of a collective bargaining agreement. We answer yes to the first question and no to the second, and affirm the judgment of the District Court. Local 816 is the authorized bargaining representative for Jackson Purchase employees. The written collective bargaining agreement is silent on the issue of checking off union dues, but for 16 years prior to 1978 Jackson Purchase deducted dues from employee paychecks and paid them over to Local 816 without written authorization from the affected employees. Jackson Purchase unilaterally terminated this practice in 1978. Local 816 protested and the matter was submitted to arbitration. The arbitrator found that the practice violated federal law. However, he concluded that the illegality was relevant only between “the federal government and each of the parties separately and should not affect [the] consensual relationship between [employer and union].” As between the parties the arbitrator concluded that the fact that the practice had continued for 16 years created an implied agreement to check off union dues between Jackson Purchase and Local 816, which had become a part of the collective bargaining agreement and was therefore not subject to unilateral termination. He ordered Jackson Purchase to continue to check off union dues upon receipt of proper authorization cards from the employees. The District Court set this arbitration award aside, holding that since the check off violated section 302(a) it could not" }, { "docid": "18715170", "title": "", "text": "that would have been collected had the company continued to check off dues from the employees’ salaries. On appeal, the Fifth Circuit specifically rejected a challenge to the lawfulness of this award. “Since the purpose of § 302(a) is to protect employers from extortion and to insure honest, uninfluenced representation of employees, and in view of the exclusion from its coverage of an arbitrator’s award we hold that § 302(a) does not render the arbitrator’s award here unenforceable.” Id. at 734. The Post suggests that the Gypsum case is distinguishable from the instant case because the Gypsum employees never revoked their dues authorizations; in contrast, the Post columnists specifically revoked their authorizations. Br. for Appellant at 25-26. No such express limitation, however, appears in the Gypsum court’s holding. The Post relies principally on two cases for its contention that awards of back union dues are unlawful under § 302. We find neither decision completely apposite. In Jackson Purchase Rural Electric Cooperative Association v. Local Union 816, International Brotherhood of Electrical Workers, 646 F.2d 264 (6th Cir. 1981), the employer, Jackson Purchase, had a collective bargaining agreement with the union. The agreement was silent on the question of dues checkoff, but for 16 years the company deducted dues from employee paychecks and paid them over to the union without written authorization from the affected employees. Jackson Purchase unilaterally terminated this practice. The union protested and the matter was submitted to arbitration. The arbitrator concluded that even though the practice had violated federal law, it had created an implied agreement between the employer and the union which could not be unilaterally terminated. The arbitrator ordered Jackson Purchase to continue to check off union dues upon receipt of proper authorization cards from the employees. The District Court, however, set the award aside. On appeal, the Sixth Circuit held that the only implied agreement between the parties was an agreement to check off dues without written authorization. Id. at 267. So viewed, “[t]he arbitrator’s award depended on the illegal past practice, thus was not based on the collective bargaining agreement, and the District Court" }, { "docid": "14237498", "title": "", "text": "it has been agreed that the contract may be reopened only for the negotiation of a wage increase and paid holidays as a fringe issue.” In line with its refusal to recognize the union, Gypsum did not negotiate with the union concerning an increase in wages for the third year of the agreement. Since this provision was held binding on Gypsum, its refusal to negotiate constituted a breach of the contract. In most circumstances if this refusal to negotiate were before an arbitrator, he would undoubtedly, assuming he found a breach, order the recalcitrant party to undertake that which it agreed to do— bargain. But this case is, to say the least, atypical. By the time the arbitrator made his decision, the union had been decerti-fied for approximately five years. The arbitrator considered this fact as effectively precluding current negotiations between a now defunct union and the employer about what they would have done in 1966. Although recognizing the uniqueness of this situation, as well as the fact that in October the company had without negotiating granted a 6$i per hour wage increase, the arbitrator concluded that the company’s breach compelled him to find a remedy. Reasoning that it was untenable to conclude that negotiations would have produced what the company alone decided to do, he rejected per hour as the standard. Starting with the median negotiated wage increase nation wide, the arbitrator applied other factors, including his own experience and expertise, and arrived at a figure of 10i an hour as the proper basis from which to calculate his award. Relying primarily on H. K. Porter Co. v. NLRB, 397 U.S. 99, 90 S.Ct. 821, 25 L.Ed.2d 146 (1970), the district court refused to enforce this award. The Supreme Court was there concerned with the remedial power of the board in a refusal to bargain in good faith — unfair labor practice setting. Apparently in an effort to thwart the collective bargaining process, the company adamantly refused to include a dues check off provision in the collective bargaining agreement then being negotiated. Finding that the company had refused to" }, { "docid": "2610305", "title": "", "text": "company to dominate the union, I believe the original agreement to check off may be enforced through the past practice doctrine. To the facts as set out in the majority opinion, I would add the following: The collective bargaining agreement, in Article IV, contains a union security clause (Record, Ex. A attached to doc. 10). Subsequent to the employer’s unilateral termination of the check-off practice in 1978, after the current agreement was executed, the union presented written authorizations which the employer refused to honor. The District Court set aside the arbitration award because it deemed the performance of the agreement to check off to be a violation of federal law. However, the District Court had first determined that the agreement itself was lawful because there was no intent to violate section 302. The issue on appeal, as I see it, is whether a past practice based on a lawful agreement may be enforced by an arbitrator as part of a collective bargaining agreement. I conclude that the check-off practice in this case may be so enforced, so long as written authorizations are submitted, as the arbitrator ordered. Discussion There is a strong public policy in the United States in favor of settling labor disputes by arbitration. Thus, the standard, of judicial review of an arbitration award is a narrow one, as set out by the Supreme Court in the Steelworkers trilogy. The courts are not to weigh the merits of a grievance. The arbitrator’s award is to be enforced so long as it draws its essence from the collective bargaining agreement. The arbitrator may incorporate into the written agreement, where the contract is silent or ambiguous on the matter, the past practices of the parties. Detroit Coil Co. v. International Ass’n of Machinists & Aerospace Workers, Lodge No. 82, 594 F.2d 575, 579 (6th Cir.), cert. denied, 444 U.S. 840, 100 S.Ct. 79, 62 L.Ed.2d 52 (1979). While a bargaining agreement is arguably not binding if it is in violation of law, Hairston v. McLean Trucking Co., 520 F.2d 226, 235 (4th Cir. 1975), I do not believe that the" }, { "docid": "8731903", "title": "", "text": "BUTZNER, Senior Circuit Judge: The International Longshoremen’s Association and several affiliated locals (collectively the union) appeal from the entry of a preliminary injunction in an action brought by Hampton Roads Shipping Association. The injunction restrains the union from striking and requires the parties to arbitrate a dispute pursuant to the provisions of their local contract. Because the dispute is presently the subject of both arbitration under their master contract and litigation in the Southern District of New York, we affirm the restraint against a strike and vacate the order to engage in arbitration under the local contract. I The Shipping Association is a multiemployer, collective bargaining association that represents employers in Hampton Roads, Virginia, in negotiations with the union. The union supplies longshoremen and other waterfront employees to the Hampton Roads ports. The relationship between the union and the association is regulated by master and local contracts. The parties disagree over whether the master contract or the local contract governs a dispute about extra drivers for container gangs. The parties to the master contract are the International and a group of regional shipping associations representing employers in 34 ports on the east coast and in the Gulf of Mexico. One of the regional associations is the Council of North Atlantic Shipping Associations, of which the Shipping Association is a member. The master contract includes a containerization agreement, which, among other things, specifies: “The minimum size of the container gang used in loading or unloading containers to or from container ships shall consist of 18 men plus two drivers.” It also provides that alleged violations of the containerization agreement are first considered locally. If the dispute is not resolved, it is referred to the emergency hearing panel, which consists of an equal number of representatives from the union and the regional shipping associations. A decision of a majority of the panel is an enforceable arbitration award. If the panel deadlocks, a third party is selected to break the deadlock, and his decision becomes the arbitration award. The contract permits the International to withhold its services from any employer who refuses to" }, { "docid": "22987153", "title": "", "text": "POSNER, Circuit Judge. Miller Brewing Company sued Local 9 of the Brewery Workers Union under section 301 of the Taft-Hartley Act, 29 U.S.C. § 185, to set aside an arbitrator’s award to the union. The award was based on the union’s complaint that Miller had violated a collective bargaining agreement with it. The union filed a counterclaim to Miller’s suit. The counterclaim, which was based both on section 301 and on section 9 of the United States Arbitration Act of 1925, 9 U.S.C. § 9, sought enforcement of the arbitration award. On the union’s motion for summary judgment, the district court entered an order enforcing the award. 562 F.Supp. 1368. It also ordered Miller to pay the union a reasonable attorney’s fee, on the ground that Miller’s challenge to the arbitration award had been frivolous. Miller appeals both orders. For many years all the brewers in Milwaukee had bargained with Local 9 in a multi-employer bargaining unit, but by 1979 the unit had only three members— Miller, Schlitz, and Pabst. The successive collective bargaining agreements between the union and the brewers’ association contained a union-shop clause requiring every new employee to join the union within 30 days after beginning work and a hiring-preference clause entitling regular employees laid off by any of the brewers to “preference” (not defined) in hiring by any other brewery in the unit. The preference was both over new applicants for employment with the brewery and over any of the brewery’s laid-off temporary employees who might be seeking to be recalled or rehired. Early in 1981 Schlitz announced that it was withdrawing from the multi-employer unit and would negotiate separately with Local 9. The union’s president told the two remaining members of the unit, Miller and Pabst, that Schlitz had agreed to include in the separate collective bargaining agreement that it was negotiating with the union the same hiring-preference clause that the multi-employer agreement contained, and Miller and Pabst agreed to a modification of that agreement that would preserve to Schlitz’s employees the rights they had had when Schlitz had been a party to it. But" } ]

[ { "docid": "22567219", "title": "", "text": "separate issues, yet courts analyzing these issues have applied the same “particularized guarantees of trustworthiness” test for each. Idaho v. Wright, 497 U.S. 805, 814-15, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990) (noting that the “hearsay rules and the Confrontation Clause are generally designed to protect similar values” but cautioning against equating the two as equals). Rule 804(b)(3) of the Federal Rules of Evidence provides in pertinent part: (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: .... (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declar-ant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Fed.R.Evid. 804(b)(3). Restated, the rule requires: the declarant be unavailable, the statement must subject the declarant to criminal liability such that a reasonable person would not have made the statement unless he believed it to be true, and the statement must be corroborated by circumstances clearly indicating trustworthiness. United States v. Sarmiento-Perez, 633 F.2d 1092, 1101 (5th Cir.1981) (citations omitted). The Sixth Amendment guarantees that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI. The Confrontation Clause, however, does not require the exclusion of any statement made by a declarant who is not present. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). Rather, a statement can be admitted by showing the declarant is unavailable and that the statement “bears adequate ‘indicia of reliability.’ ” Id. In the present case, the first two requirements of Rule 804(b)(3) and the first requirement of the Confrontation Clause" } ]

[ { "docid": "5774083", "title": "", "text": "when he told the reporting agent that [Ba-hadar] knew about the heroin [“Hagi”] was delivering to Ali.” This same statement alleged that “Abdul” was a 50-year-old male Hispanic named Lumeno, who was listed in Ali’s telephone book under the name of “Wong”. On October 4, 1990, Ali gave a sworn statement to Bahadar’s attorney stating that Bahadar was not “Abdul”. Instead, “Abdul who is involved in drugs, his name is Rievera and I have seen him. He lives in C 2 in Bronx.” Since Bahadar was unsuccessful in getting direct testimony by Ali in front of the jury, he tried the next-best thing: a hearsay exception for Ali’s prior exculpatory statement. The exception Bahadar tried to invoke was Fed.R.Evid. 804(b)(3), which provides: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Fed.R.Evid. 804(b)(3). Such a statement is admissible if (1) the witness is “unavailable”, see Fed.R.Evid. 804(a), and (2) it satisfies the requirements of Fed.R.Evid. 804(b)(3), including the requirement that “corroborating circumstances clearly indicate the trustworthiness of the statement”. Our review is solely for abuse of discretion. United States v. Salvador, 820 F.2d 558, 561 (2d Cir.), cert. denied, 484 U.S. 966, 108 S.Ct. 458, 98 L.Ed.2d 398 (1987). 1. Unavailability. Our initial inquiry is whether Ali was “unavailable”. We start with the text of the rule. Fed. R.Evid. 804(a)(1) states that a declarant who “is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement” is unavailable. As we recently stated in United States v. Salerno, “[w]e have long recognized" }, { "docid": "22998758", "title": "", "text": "the jury’s verdict. Thus, because the decision to admit Adolfo Paulino’s statement fell within the district court’s discretion and was, even if error, harmless, we reject this part of Christian Paulino’s evidentiary challenge to his conviction. c. The District Court Properly Denied Christian Paulino’s Rule 804.(b)(3) Motion to Exclude an Out-of-Court Statement by His Father Prior to Christian Paulino’s trial, defense counsel moved pursuant to Feder al Rule of Evidence 804(b)(3) to offer a statement made on June 2, 2003, by Adolfo Paulino to his son’s defense counsel indicating “that the drugs for which his son had been arrested were his, and not his son’s.” Von Dornum Letter to Judge Cote, Sept. 23, 2003, at 1. Counsel proffered that the elder Paulino was unavailable as a witness because, if called to testify at his son’s trial, he would invoke his privilege against self-incrimination. See id. at 3. The district court denied the motion, finding that the defense had failed to adduce the requisite corroborating circumstances for admission of the statement pursuant to Rule 804(b)(3). We agree. Rule 804(b)(3) provides an exception to the general rule against admission of a hearsay statement when a declarant is unavailable as a witness and his out-of-court statement tends to subject him to criminal liability. See United States v. Jackson, 335 F.3d 170, 177 (2d Cir.2003) (noting that a witness who invokes the privilege against self-incrimination is “unavailable” within the meaning of Rule 804(b)). An important caveat obtains, however, when the inculpatory statement is offered to exculpate the accused; specifically, there must be “corroborating circumstances clearly indicating] the trustworthiness of the statement.” Fed.R.Evid. 804(b)(3). The burden is on the proponent of 804(b)(3) evidence to demonstrate sufficient corroboration. See United States v. Doyle, 130 F.3d 523, 543-44 (2d Cir.1997). To carry this burden, he must point “to evidence that corroborates both the declarant’s trustworthiness and the truth of the statement.” United States v. Lumpkin, 192 F.3d 280,. 287 (2d Cir.1999); accord United States v. Abreu, 342 F.3d at 190. Paulino’s proffer failed in both respects. As the district court correctly observed, the circumstances at issue hardly" }, { "docid": "22690471", "title": "", "text": "this evidence was non-eumu-lative and that it would have been material. However, we are confident that the district court did not abuse its discretion in concluding that it is not probable that West’s testimony would have produced a different result. This is so because West’s statement unquestionably was hearsay, and it is overwhelmingly likely that the statement was inadmissible under the exception to the hearsay rule set forth in Fed.R.Evid. 804(b)(3). Rule 804(b)(3) plainly provides that “[a] statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” Fed.R.Evid. 804(b)(3). We have interpreted this Rule to “establish[ ] a three-prong test for the admission of statements against interest in criminal cases: (1) the declarant must be unavailable; (2) the statement must be against the declarant’s penal interest; and (3) corroborating circumstances must clearly indicate the trustworthiness of the statement.” United States v. Thomas, 62 F.3d 1332, 1337 (11th Cir.1995) (citation omitted). Here, the first prong of this test is satisfied, as Nelson exercised his Fifth Amendment right not to testify at trial. See id. (“Because they invoked their Fifth Amendment privilege to remain silent, it is clear that the McCoys were unavailable.” (citing United States v. Hendrieth, 922 F.2d 748, 750 (11th Cir.1991))). The second prong is satisfied as well, since Nelson’s alleged statements, taken on their face, were self-inculpatory. The problem for Jernigan, however, is the third prong, because he has failed to make the requisite showing that West’s statement was in fact trustworthy. Indeed, the only evidence presented at trial that was consistent with Nelson’s alleged self-inculpatory statement was the fact that the weapon was wrapped in a red bandanna and was physically proximate to Nelson’s seat in the truck’s cab. By contrast, the statement was contradicted by all of the government’s evidence inculpating Jernigan. Moreover, the district court is “entitled to consider the fact that [the person proffering the testimony is] a prison inmate in determining whether his testimony would be trustworthy.” United States v. Gossett, 877 F.2d 901, 907" }, { "docid": "15935978", "title": "", "text": "L.Ed.2d 177 (2004) (“It is settled in this Circuit that a witness who invokes the privilege against self-incrimination is ‘unavailable’ within the meaning of Rule 804(b) even though the Government has the power to displace the witness’s privilege with a grant of use immunity.”). The prospective witness invoked his privilege through his attorney. The absence of follow-up communication from Branch-Ramadan after the December 3 hearing, coupled with Branch-Ramadan’s earlier assurance that she would contact the court if Norman indicated he would testify, was sufficient to constitute an assertion of privilege. See United States v. Muyet, 958 F.Supp. 136, 138 (S.D.N.Y.1997) (“[A] declarant, whose attorney represents that the declarant will assert his privilege against self-incrimination if called to testify, is unavailable for purposes of Rule 804(b)(3).”) (citing Williams, 927 F.2d at 99). Defendants cite a series of criminal cases — none of which involve Rule 804 — in which the Court of Appeals for the Second Circuit has held that “[a] district court should not accept a witness’ blanket assertion of the Fifth Amendment privilege in response to any and all questions asked of her.” United States v. Rodriguez, 706 F.2d 31, 37 (2d Cir.1983). Rule 804 contemplates a more flexible approach to the admission of hearsay statements by an unavailable declarant. It allows the court to deem a declarant “unavailable” if the declarant “is exempted from testifying about the subject matter of the declarant’s [hearsay] statements because the court rules that a privilege applies.” Fed. R.Evid. 804(a)(1) (emphasis added). Here, it is plain that the privilege against self-incrimination would apply to the general subject matter of Norman’s purported confession that he planted key evidence that led to plaintiffs arrest. Forcing Norman to personally appear in federal court in Brooklyn to invoke his Fifth Amendment rights, or imposing upon North Carolina officials to establish a reliable video connection, would have been a needlessly burdensome exercise in light of his counsel’s assurances. To the extent the court erred in failing to obtain better assurances of Norman’s “unavailability” before admitting his statements, the error was harmless. Branch-Ramadan’s subsequent testimony, which the court credits," }, { "docid": "23502721", "title": "", "text": "783 (11th Cir.2007) (citation omitted). Appellant must demonstrate that “ ‘the district court’s decision rests upon a clearly erroneous finding of fact, an errant conclusion of law, or an improper application of law to fact.’ ” United States v. Smith, 459 F.3d 1276, 1295 (11th Cir.2006) (quoting United States v. Baker, 432 F.3d 1189, 1202 (11th Cir.2005)). The government agrees that Carpenter’s statements concerning what Johns told him are hearsay statements admitted for the truth of the matter asserted, presumptively inadmissible under Rule 802 of the Federal Rules of Evidence. See Fed. R.Evid. 802. Nonetheless, the government suggests several hearsay exceptions apply, most notably the Rule 804(b)(3) exception. Rule 804(b)(3) permits admission of a hearsay statement “which [ ] at the time of its making ... so far tended to subject the declarant to civil or criminal liability ... that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true.” Fed.R.Evid. 804(b)(3). “To be admissible under Rule 804(b)(3), a statement must satisfy three elements: ‘(1) the declarant [must be] unavailable; (2) the statement so far tends to subject the declarant to criminal liability that a reasonable person in his position would not have made the statement unless he believed it to be true; and (3) the statement is corroborated by circumstances clearly indicating its trustworthiness.’ ” United States v. Costa, 31 F.3d 1073, 1077 (11th Cir.1994) (citations omitted); see also United States v. Harrell, 788 F.2d 1524, 1526 (11th Cir.1986) (citations omitted). While a determination of whether a statement is against the declarant’s penal interest is purely a question of law subject to de novo review, see Costa, 31 F.3d at 1077, consideration of a statement’s trustworthiness requires a review of findings of fact and a review of the trial court’s application of a legal standard to the facts. See United States v. Bagley, 537 F.2d 162, 166 (5th Cir.1976). Because the trial court made no finding regarding the applicability of the statement against penal interest exception, or any other hearsay exception, we “ ‘determine whether any reasonable view of the" }, { "docid": "5774089", "title": "", "text": "targets].”); United States v. Lester, 749 F.2d 1288, 1301 (9th Cir.1984); United States v. Young Bros., Inc., 728 F.2d 682, 691 (5th Cir.), cert. denied, 469 U.S. 881, 105 S.Ct. 246, 83 L.Ed.2d 184 (1984); United States v. Klauber, 611 F.2d 512, 516-17 (4th Cir.1979), cert. denied, 446 U.S. 908, 100 S.Ct. 1835, 64 L.Ed.2d 261 (1980). Cf. United States v. Vigoa, 656 F.Supp. 1499, 1505 (D.N.J.1987), aff'd mem. 857 F.2d 1467 (3d Cir.1988). To summarize: Our decision in Salerno, contrary to the fears of the in banc dissenters and the government, did not change the concept of “unavailability” as defined in Fed.R.Evid. 804(a)(1). When a fifth amendment privilege is properly asserted by a trial witness, that witness becomes “unavailable” for purposes of rendering potentially applicable all of the hearsay exceptions described in rule 804(b). United States v. Salerno, 937 F.2d at 805; United States v. Salvador, 820 F.2d at 560; United States v. Rodriguez, 706 F.2d 31, 40 (2d Cir.1983); United States v. Beltempo, 675 F.2d 472, 480 (2d Cir.), cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982). Each of those exceptions, of course, has its own special requirements for admissibility. Applying those principles here, we conclude that by invoking a valid fifth amendment privilege, Ali became “unavailable” under rule 804(a)(1), and we therefore turn to whether his prior statements as offered by Bahadar met the requirements of the 804(b)(3) hearsay exception for statements against penal interest. 2. Against penal interest. Once Judge Bartels ruled that Ali had a valid fifth amendment privilege, Bahadar’s counsel attempted to introduce Ali’s prior statements under Fed.R.Evid. 804(b)(3), the hearsay exception for statements against interest. Essentially, rule 804(b)(3) requires that the statement — to be admissible — must have been, at the time it was made, so far contrary to the declarant’s best interests that a reasonable person would not make the statement unless the declarant believed it to be true. Fed. R.Evid. 804(b)(3). Once that determination is made, the inquiry ends — unless the statement would simultaneously expose the de-clarant to criminal liability and exculpate the accused. In" }, { "docid": "23013093", "title": "", "text": "test for admissibility of inculpatory declarations against interest developed in United States v. Alvarez, supra, 584 F.2d at 701. Thus, we hold that before an inculpatory statement against penal interest is admissible under Rule 804(b)(3), it must be shown that (1) the declarant is unavailable as a witness, (2) the statement must so far tend to subject the declarant to criminal liability that a reasonable person in the declarant’s position would not have made the statement unless he or she believed it to be true, and (3) corroborating circumstances clearly indicate the trustworthiness of the statement. Accord, United States v. Palumbo, supra, 639 F.2d at 131 (Adams, J., concurring); United States v. Sarmiento-Perez, supra, 633 F.2d at 1101; United States v. Oliver, supra, 626 F.2d at 260; cf. United States v. Goins, supra, 593 F.2d at 92 (the context of inculpatory declarations, identity of persons spoken to by declarant, and other corroborating evidence constitute “clear indicia of reliability” required by confrontation clause analysis). See also 4 D. Louisell & C. Mueller, Federal Evidence § 489, at 1180 (1980); Tague, supra, 69 Geo.L.J. at 996; Comment, supra, 66. Calif.L.Rev. at 1216 (advocating a “strict scrutiny” plus corroboration test of admissibility). In the present case the first criterion of the test has been met: the declarant, Ms. Robinson, was an unavailable witness as defined in Fed.R.Evid. 804(a)(5) and neither the government, as the proponent of her statement, nor appellant was responsible for her absence. We now discuss whether the second criterion has been satisfied. “[T]he ‘against interest’ exception is not limited to a declarant’s direct confession of criminal guilt, but applies as well to statements that ‘tend’ to subject the speaker to criminal liability.” United States v. Palumbo, supra, 639 F.2d at 132 (Adams, J., concurring) (footnote omitted), citing United States v. Alvarez, supra, 584 F.2d at 699; accord, United States v. Satterfield, 572 F.2d 687, 691 (9th Cir. 1978); United States v. Thomas, 571 F.2d 285, 288 (5th Cir. 1978) (circumstance that exculpatory extrajudicial statement would have probative value in trial against declarant is indicative of reliability); United States v. Barrett," }, { "docid": "17366507", "title": "", "text": "which Ward claimed to have killed Moore. Ward’s confession is hearsay, but under Federal Rule of Evidence 804(b)(3) such hearsay was admissible if: (1) the declarant was unavailable, (2) the statement was against the declarant’s interest, and (3) “corroborating circumstances clearly indicate the trustworthiness of the statement.” The party offering the statement bears the burden of establishing that the statement meets these requirements. See United States v. Jackson, 540 F.3d 578, 588 (7th Cir.2008); United States v. MacDonald, 688 F.2d 224, 233 (4th Cir.1982). There is no dispute that Ward was unavailable because he had invoked his Fifth Amendment right against self-incrimination. There is also no dispute that Ward’s confession to killing Eric Moore is a statement against his interest. The issue here is thus whether corroborating circumstances “clearly indicate” the trustworthiness of Ward’s statement. Fed. R.Evid. 804(b)(3) (emphasis added). Rule 804(b)(3)’s standard is demanding. The requirement for clear indications of trustworthiness serves to prevent someone whose reliability cannot be tested by cross-examination (such as Ward) from exonerating a guilty party by incriminating himself. The rule thus contemplates that some out-of-court admissions of guilt will be excluded, despite their relevance, because they possess insufficient indications of trustworthiness. See United States v. Salvador, 820 F.2d 558, 561 (2d Cir.1987); United States v. Silverstein, 732 F.2d 1338, 1346-47 (7th Cir.1984); MacDonald, 688 F.2d at 233; see also United States v. Edelin, 996 F.2d 1238, 1241-42 (D.C.Cir. 1993). Smith’s argument that Ward’s confession is “clearly” corroborated for purposes of Rule 804(b)(3) rests largely oh general facts that do not directly confirm Ward’s claim to have killed Eric Moore. Ward’s fingerprint proves that Ward was in Moore’s apartment at some point. But in his statement, Ward claimed that he was in an ongoing romantic relationship with Moore and regularly stayed with him. The fingerprint thus does not corroborate Ward’s claim that he was present during the murder, much less that he committed it. Smith’s other examples of corroborating evidence suffer from similar problems: Evidence tending to demonstrate that Ward knew certain things about Moore only corroborate Ward’s claim that he knew Moore, not that" }, { "docid": "15935977", "title": "", "text": "criminal liability.” Fed.R.Evid. 804(b)(3)(A). A witness need not be haled into court to be declared “unavailable” for purposes of Rule 804. United States v. Williams, 927 F.2d 95, 99 (2d Cir.1991) (“[Rule 804](a)(l) ... identifies as ‘unavailable’ a witness who is exempted by a court ruling on the ground of privilege. Such a ruling can be made, as in the instant case, with or without the witness being haled into court.”). C. Application of Law to Facts Norman’s hearsay statements were properly admitted as statements against interest. Defendants do not suggest that Norman’s admission that he planted a gun and drugs were not “statements against interest”; rather, they dispute whether he was truly “unavailable” at the time of trial. He was “unavailable” for purposes of the trial because the court ruled his Fifth Amendment privilege exempted him from testifying about the subject matter of his hearsay statements. See Fed.R.Evid. 804(a)(1); United States v. Dolah, 245 F.3d 98, 102 (2d Cir.2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (“It is settled in this Circuit that a witness who invokes the privilege against self-incrimination is ‘unavailable’ within the meaning of Rule 804(b) even though the Government has the power to displace the witness’s privilege with a grant of use immunity.”). The prospective witness invoked his privilege through his attorney. The absence of follow-up communication from Branch-Ramadan after the December 3 hearing, coupled with Branch-Ramadan’s earlier assurance that she would contact the court if Norman indicated he would testify, was sufficient to constitute an assertion of privilege. See United States v. Muyet, 958 F.Supp. 136, 138 (S.D.N.Y.1997) (“[A] declarant, whose attorney represents that the declarant will assert his privilege against self-incrimination if called to testify, is unavailable for purposes of Rule 804(b)(3).”) (citing Williams, 927 F.2d at 99). Defendants cite a series of criminal cases — none of which involve Rule 804 — in which the Court of Appeals for the Second Circuit has held that “[a] district court should not accept a witness’ blanket assertion of the Fifth Amendment privilege in" }, { "docid": "15935976", "title": "", "text": "confirmed that she spoke with Norman before the civil trial, and that Norman said he “absolutely ... would” follow her advice and plead the Fifth Amendment if called to testify. Hr’g Tr. 44:5-44:16. B. Law Hearsay statements generally are inadmissible. See Fed.R.Evid. 802. Several exemptions to the rule against hearsay apply where “[a] declarant is considered to be unavailable as a witness.” Fed.R.Evid. 804(a). A declarant is “unavailable” within the meaning of Rule 804 if the declarant “is exempted from testifying about the subject matter of the declar-ant’s statement because the court rules that a privilege applies.” Fed.R.Evid. 804(a)(1). “Statements against interest” are not excluded by the rule against hearsay if the declarant is unavailable as a witness. Fed. R.Evid. 804(b)(3). A statement against interest is one that “a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency ... to expose the declarant to civil or criminal liability.” Fed.R.Evid. 804(b)(3)(A). A witness need not be haled into court to be declared “unavailable” for purposes of Rule 804. United States v. Williams, 927 F.2d 95, 99 (2d Cir.1991) (“[Rule 804](a)(l) ... identifies as ‘unavailable’ a witness who is exempted by a court ruling on the ground of privilege. Such a ruling can be made, as in the instant case, with or without the witness being haled into court.”). C. Application of Law to Facts Norman’s hearsay statements were properly admitted as statements against interest. Defendants do not suggest that Norman’s admission that he planted a gun and drugs were not “statements against interest”; rather, they dispute whether he was truly “unavailable” at the time of trial. He was “unavailable” for purposes of the trial because the court ruled his Fifth Amendment privilege exempted him from testifying about the subject matter of his hearsay statements. See Fed.R.Evid. 804(a)(1); United States v. Dolah, 245 F.3d 98, 102 (2d Cir.2001), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158" }, { "docid": "1800798", "title": "", "text": "charges. Thereafter, Oscar tried to introduce into evidence the hearsay exculpatory statement of Guzman to the AUSA. Judge Walker refused to admit this evidence, stating that Guzman’s statement was “of the most conclusory nature ... and ... the indicia of reliability are far too insufficient” and that there was insufficient corroboration to clearly indicate the trustworthiness of the statement. Thereafter, the jury convicted Oscar on the two counts of the indictment in which he was charged. II. The only issue on appeal is whether the district court properly excluded at trial Guzman’s hearsay statement on November 17, 1986 to the AUSA. The relevant evidence rule is Rule 804, which provides as follows: Rule 804- Hearsay Exceptions: Declarant Unavailable (a) Definition of unavailability. “Unavailability as a witness” includes situations in which the declarant— (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of his statement; (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant’s pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. In light of the district court’s ruling that Guzman was entitled to invoke his Fifth Amendment rights, which the government does not contest, Guzman was an “unavailable” witness under Rule 804(a)(1), United States v. Beltempo, 675 F.2d 472, 480 (2d Cir.), cert. denied, 457 U.S. 1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982). The question before us, therefore, is whether the district court erred in applying subsection (b)(3) of Rule 804. Appellant Oscar Salvador maintains that the judge did commit reversible" }, { "docid": "22914640", "title": "", "text": "804(b)(3), such a declaration must meet the following three-part test: “(1) The declarant must be unavailable; (2) The statement must so far tend to subject the declarant to criminal liability that a reasonable person in his position would not have made the statement unless he believed it to be true; and (3) The statement must be corroborated by circumstances clearly indicating its trustworthiness.” United States v. Flores, 985 F.2d 770, 774 n. 10 (5th Cir.1993) (quoting United States v. Sarmiento-Perez, 633 F.2d 1092, 1101 (5th Cir.1981), cert. denied, 459 U.S. 834, 103 S.Ct. 77, 74 L.Ed.2d 75 (1982)). We will uphold the district court’s determination as to the trustworthiness of an out-of-court statement unless it is clearly erroneous. United States v. Briscoe, 742 F.2d 842, 846-47 (5th Cir.1984). What a court may or must consider in determining the trustworthiness of a statement for the purposes of Rule 804(b)(3) is governed in part by the Supreme Court’s ruling in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). In Wright, the Court held that unless a hearsay statement is admissible under a “firmly rooted” hearsay exception, and thus presumed to be reliable, the Confrontation Clause of the Sixth Amendment requires that the party seeking to admit the statement provide “particularized guarantees of trustworthiness” to the court. Flores, 985 F.2d at 775. In Flores, we noted that: “Although some statements that fall within the declaration-against-penal-interest concept may be inherently reliable, the concept itself ‘defines too large a class for meaningful Confrontation Clause analysis.’” Id. at 775-76 (quoting Lee v. Illinois, 476 U.S. 530, 544 n. 5, 106 S.Ct. 2056, 2064 n. 5, 90 L.Ed.2d 514 (1986)). We held in Flores that “a confession by an accomplice inculpating a defendant that is being offered as a declaration against penal interest is not a firmly rooted exception” to the hearsay rule, and thus not inherently reliable. Id. at 775. In Flores, we did not consider whether a statement by an accomplice exculpating a defendant falls under a firmly rooted exception to the hearsay rule. However, in United States v. Sarmiento-Perez," }, { "docid": "5774084", "title": "", "text": "the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Fed.R.Evid. 804(b)(3). Such a statement is admissible if (1) the witness is “unavailable”, see Fed.R.Evid. 804(a), and (2) it satisfies the requirements of Fed.R.Evid. 804(b)(3), including the requirement that “corroborating circumstances clearly indicate the trustworthiness of the statement”. Our review is solely for abuse of discretion. United States v. Salvador, 820 F.2d 558, 561 (2d Cir.), cert. denied, 484 U.S. 966, 108 S.Ct. 458, 98 L.Ed.2d 398 (1987). 1. Unavailability. Our initial inquiry is whether Ali was “unavailable”. We start with the text of the rule. Fed. R.Evid. 804(a)(1) states that a declarant who “is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement” is unavailable. As we recently stated in United States v. Salerno, “[w]e have long recognized that ‘unavailability’ includes within its scope those witnesses who are called to testify but refuse based on a valid assertion of their fifth amendment privilege against self-incrimination.” 937 F.2d at 805 (citing cases). However, there has been some suggestion that United States v. Salerno might be read to support the proposition that “a witness is ‘available’ to the prosecution because use immunity can be conferred”. See United States v. Salerno, 952 F.2d 624 (2d Cir.1991) (Newman, J., dissenting from denial of rehearing in banc). Thus, so the argument goes, the government would be unable to invoke any of the rule 804(b) hearsay exceptions in criminal cases, since the government always has the ability to immunize a witness who claims the fifth amendment privilege and thereby make that witness available. Such an interpretation of United States v. Salerno would be an unrealistic reading of the rules of evidence, of the law of immunity, and of the Salerno decision itself. The discussion of rule 804(a)(1) in Salerno provided a background for our analysis of rule 804(b)(1), the" }, { "docid": "5915923", "title": "", "text": "under Federal Rule of Evidence 403 because they contained references to “insiders,” “guards” or “connections” who had purportedly provided the necessary inside information to perpetrate the robberies. The district court admitted these state ments under Federal Rule of Evidence 804(b)(3) as statements against interest. We briefly discuss this rule below. 2. Rule 804(b)(3) Hearsay is defined as a statement that the declarant “does not make while testifying at the current trial or hearing” and which the proponent “offers in evidence to prove the truth of the matter asserted in the statement.” Fed. R.Evid. 801(c). Hearsay is inadmissible unless certain exceptions are met. Fed. R.Evid. 802. Rule 804(b)(3) establishes one of those exceptions: statements made by an unavailable declarant against penal interest. “A statement is against the de-clarant’s penal interest if it tends to subject the declarant to criminal liability to such an extent that a reasonable person would not make the statement unless it were true.” United States v. Fogg, 666 F.3d 13, 17 (1st Cir.2011) (citing United States v. Jiménez, 419 F.3d 34, 43 (1st Cir.2005)) (internal quotations and brackets omitted). We must look at all of the surrounding circumstances in order to determine whether a statement is admissible under the rule. See United States v. Pel-letier, 666 F.3d 1, 8 (1st Cir.2011). In Williamson v. United States, 512 U.S. 594, 114 S.Ct. 2431, 129 L.Ed.2d 476 (1994), the Supreme Court elucidated the scope of Rule 804(b)(3) as it applies to statements against penal interest. There, the Court determined that the Rule “does not allow [the] admission of non-self incul-patory statements, even if they are made within a broader narrative that is generally self-inculpatory.” Id. at 600-01, 114 S.Ct. 2431. The Court went on to say that, [WJhether a statement is self-inculpato-ry or not can only be determined by viewing it in context. Even statements that are on their face neutral may actually be against the declarant’s interest. “I hid the gun in Joe’s apartment” may not be a confession of a crime; but if it is likely to help the police find the murder weapon, then it is" }, { "docid": "17642798", "title": "", "text": "have a motive to develop the co-conspirator’s testimony on cross-examination at the plea hearing). Powell, however, specifically reserved ruling on whether a plea transcript would be admissible under Rule 804(b)(3). Id. at 901 n. 5. Though Rule 802 prohibits the admission of hearsay statements, Rule 804 provides exceptions to the general rule when the declarant is' unavailable to testify. Fed. R.Evid. 804(a). One of those exceptions is for statements against the declarant’s penal interest; Rule 804(b)(3) allows the admission of [a] statement which was at the time of its making so far ... tended to subject the declarant to civil or criminal liability ... that a reasonable person in the declarant’s position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Fed.R.Evid. . 804(b)(3). Under Rule 804(b)(3), the proponent of the out-of-court statement must demonstrate that the declar-ant is unavailable to testify and that the statement was against the declarant’s penal interest. United States v. Groce, 999 F.2d 1189, 1190 (7th Cir.1993). The second sentence of Rule 804(b)(3) is of particular importance in this ease, because it expressly requires the exclusion of out-of-court statements offered to exculpate the accused unless there are corroborating circumstances which buttress the trustworthiness of the statement. See, e.g., United States v. Williams, 738 F.2d 172, 178 (7th Cir.1984) (holding that when a defendant seeks to offer an exculpatory out-of-court statement under Rule 804(b)(3) it must be supported by corroborating circumstances to qualify for admission); United States v. Silverstein, 732 F.2d 1338, 1346 (7th Cir.1984) (requiring corroborating circumstances to support admission of exculpating hearsay statement offered by defendant), cert. denied, 469 U.S. 1111, 105 S.Ct. 792, 83 L.Ed.2d 785 (1985). The government concedes that Dumont, through his counsel, asserted his Fifth Amendment privilege against self-incrimination and was therefore unavailable to testify. Fed.R.Evid. 804(a)(1). The government, however, disputes whether Dumont’s statements were against his penal interest and whether there were sufficient corroborating circumstances to justify" }, { "docid": "23490403", "title": "", "text": "the hearing of the Magistrate but also in the presence of the attorneys for the prosecution and for the defendants and a newspaperman. The court rejected the offer of proof, stating that the government could introduce the statement but Thomas could not. The court was troubled by the possibility that introduction of the statement by Thomas would necessitate a mistrial for Weeks. We hold that the statement was admissible when offered by Thomas because it was a statement against penal interest qualifying as an exception to the hearsay rule under Federal Rule of Evidence 804(b)(3). To be admissible under 804(b)(3), a statement must meet three tests: the declarant’s testimony must be unavailable; the statement must so far tend to subject the declarant to criminal liability “that a reasonable man in his position would not have made the statement unless he believed it to be true”; and the statement, if offered to exculpate the accused, must be corroborated by circumstances clearly indicating its trustworthiness. Weeks’ testimony was clearly unavailable under Rule 804(a)(1), which defines unavailability to include declarants not testifying because of privilege. Weeks did not take the stand, obviously relying on the privilege against self-incrimination. His unavailability based on the Fifth Amendment privilege satisfies 804(a)(1). See U. S. v. Mackin, 561 F.2d 958 (CA2, 1977), cert. denied, - U.S. -, 98 S.Ct. 490, 54 L.Ed.2d 319 (1977). Rule 804(a)(1) requires an express assertion of the privilege and a ruling by the court that the privilege constitutes unavailability, see 4 Weinstein’s Evidence ¶ 804(a)[01] (1976), but here the existence of the privilege and Weeks’ right to assert it and Weeks’ unavailability as a witness are ^patent. The trial court declared the evidence inadmissible before reaching issues raised by Rule 804. It would be mere formalism to abjure the merits of Thomas’ claim in these circumstances. See U. S. v. Oropeza, 564 F.2d 316, 325 n. 8 (CA9, 1977). The statement offered by Thomas satisfies the requirement that it be against Weeks’ penal interest. The government argues that Weeks’ statement was not against his penal interest because he did not expressly confess" }, { "docid": "9675989", "title": "", "text": "was a “writ writer” who Denver had solicited to help with his post-conviction petitions. Essentially, these men testified that Johnnie told them Denver had nothing to do with the killing but that Johnnie had been promised by the “Prosecuting Attorney and his [Johnnie’s] lawyer” that his life sentence would be reduced to five years if he did not testify for Denver. The district court ruled that the statements by these inmates were inadmissible hearsay. Petitioner challenges this ruling on appeal arguing that the statements are admissible as an exception to the hearsay rule, specifically the “against penal interest” exception. This exception is based upon the “circumstantial probability of trustworthiness,” that is, “the circumstance that the fact stated, being against the declarant’s interest, is not likely to have been stated untruthfully.” 5 Wigmore, Evidence § 1455 (Chadboum rev. 1974). The party seeking to admit statements under this exception must prove (1) the declarant is unavailable, and (2) the statements are against the declarant’s penal interest. Fed.R.Evid. 804(a)(1) and 804(b)(3). Although we agree with petitioner that John nie is unavailable as required by the rule, we cannot agree that these statements are against his penal interest. The Federal Rules of Evidence state that “ ‘Unavailability as a witness’ includes situations in which the declarant . is exempted by ruling of the court on the ground of privilege from testifying . . .” Fed.R.Evid. 804(a)(1). This circuit has made clear that the above definition includes the situation where the witness invokes the fifth amendment privilege against self-incrimination. See, e. g., United States v. Pelton, 578 F.2d 701, 709-710 (8th Cir. 1978); United States v. Rogers, 549 F.2d 490, 498 n.8 (8th Cir. 1976); see also 5 Wigmore, Evidence, supra, § 1456 n.6. Therefore, because Johnnie Witham was allowed to assert his fifth amendment right not to testify, he is, as petitioner claims, unavailable within Rule 804(a)(1). The next element, whether the statements Johnnie made to his fellow inmates are against his penal interest, is complicated by the fact that Johnnie has already been convicted. At least one court has held that statements cannot" }, { "docid": "5774090", "title": "", "text": "1135, 102 S.Ct. 2963, 73 L.Ed.2d 1353 (1982). Each of those exceptions, of course, has its own special requirements for admissibility. Applying those principles here, we conclude that by invoking a valid fifth amendment privilege, Ali became “unavailable” under rule 804(a)(1), and we therefore turn to whether his prior statements as offered by Bahadar met the requirements of the 804(b)(3) hearsay exception for statements against penal interest. 2. Against penal interest. Once Judge Bartels ruled that Ali had a valid fifth amendment privilege, Bahadar’s counsel attempted to introduce Ali’s prior statements under Fed.R.Evid. 804(b)(3), the hearsay exception for statements against interest. Essentially, rule 804(b)(3) requires that the statement — to be admissible — must have been, at the time it was made, so far contrary to the declarant’s best interests that a reasonable person would not make the statement unless the declarant believed it to be true. Fed. R.Evid. 804(b)(3). Once that determination is made, the inquiry ends — unless the statement would simultaneously expose the de-clarant to criminal liability and exculpate the accused. In that case; the last sentence of rule 804(b)(3) applies, requiring corroborating circumstances to “clearly indicate the trustworthiness of the statement”. Id. In the district court, Bahadar attempted to introduce Ali’s May 14, 1990, statement under rule 804(b)(3). Bahadar argued that corroborating circumstances existed, since “the exculpatory statement was given when this witness was making a proffer to the Government in order to work out a cooperation agreement, [therefore,] it was to [Ali’s] advantage to tell the truth.” In ruling the statement inadmissible, Judge Bartels said, “I don’t think it’s against penal interest.” On appeal, Bahadar argues that since Ali’s fifth amendment privilege against self-incrimination was upheld, “[i]t is absurd for the government to argue in the same breath that the very same statements were not against Ali’s penal interest.” An intriguing argument, to be sure, but we need not address it, because the last requirement of rule 804(b)(3) — that of corroboration — was not met by Bahadar. “The corroboration requirement of the Rule should be construed to effectuate its purpose of ‘circumventing fabrication.’ ”" }, { "docid": "22914639", "title": "", "text": "them to distinguish between Smith and Flowers, who share the first name “Kenneth.” Furthermore, as the Government notes, the nickname “Crazy K” is not necessarily suggestive of a criminal disposition. For these reasons, we hold that the district court did not err or abuse its discretion in overruling Smith’s objections to the Government’s attorneys’ and witnesses’ referring to him as “Crazy K.” V Dean, Cofer, and Flowers further contend that the district court abused its discretion in refusing to allow into evidence, under Rule 804(b)(3) of the Federal Rules of Evidence, Smith’s statement during plea negotiations that Dean, Cofer, and Flowers had not known of the proposed drug exchange at the time Smith, Flowers, and Espy entered the motel room. Smith claimed during negotiations that only he and Espy had known anything about the drug deal. At trial, however, Smith objected to the introduction of these statements. Rule 804(b)(3) of the Federal Rules of Evidence creates a limited exception to the hearsay rule for statements against the declarant’s penal interest. To be admissible under Rule 804(b)(3), such a declaration must meet the following three-part test: “(1) The declarant must be unavailable; (2) The statement must so far tend to subject the declarant to criminal liability that a reasonable person in his position would not have made the statement unless he believed it to be true; and (3) The statement must be corroborated by circumstances clearly indicating its trustworthiness.” United States v. Flores, 985 F.2d 770, 774 n. 10 (5th Cir.1993) (quoting United States v. Sarmiento-Perez, 633 F.2d 1092, 1101 (5th Cir.1981), cert. denied, 459 U.S. 834, 103 S.Ct. 77, 74 L.Ed.2d 75 (1982)). We will uphold the district court’s determination as to the trustworthiness of an out-of-court statement unless it is clearly erroneous. United States v. Briscoe, 742 F.2d 842, 846-47 (5th Cir.1984). What a court may or must consider in determining the trustworthiness of a statement for the purposes of Rule 804(b)(3) is governed in part by the Supreme Court’s ruling in Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). In Wright, the Court" }, { "docid": "5422802", "title": "", "text": "details concerning the return of partial verdicts are set forth in Part III, infra. Their sentences included terms of imprisonment of forty-six months. Discussion I. The Admission of the Plea Allocutions Judge Carter admitted into evidence the guilty plea allocutions of the three co-defendants under the provision of the Federal Rules of Evidence that exempts from the prohibition of hearsay a “statement against interest” (i.e., a statement contrary to the interests of the declarant, such as an admission of criminal liability). Fed. R.Evid. 804(b)(3). Such statements are admissible only if the declarant is “unavailable as a witness,” id. 804(b), and “ ‘[u]na-váilability as a witness’ includes situations in which the declarant ... is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant’s statement,” id. 804(a)(1). Here, the three co-defendants had indicated they would invoke their self-incrimination privilege. Rule 804 also provides that “[a] declarant is not unavailable as a witness if ... refusal ... is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying.” Id. 804(a). The Appellants challenge the admission of the co-defendants’ plea allocutions as contrary to both Rule 804 and the Constitution. A. Rule 804 The argument based on Rule 804 has two parts. At its fullest, the argument is that the Government has not satisfied the “unavailability” requirement of Rule 804(b) because the co-defendants would have testified had the Government displaced their self-incrimination privilege by giving them use immunity. See 18 U.S.C. § 6002 (use immunity). More narrowly, the Appellants contend that even if the co-defendants would normally be considered “unavailable” within the meaning of Rule 804(b), their unavailability was attributable to “wrongdoing” by the Government within the meaning of Rule 804(a) because the Government withheld immunity from the three former Stone Asset employees whose plea allocutions they wanted to introduce after selectively conferring immunity on other former employees. Unavailability. It is settled in this Circuit that a witness who invokes the privilege against self-incrimination is “unavailable” within the meaning of" } ]

[ { "docid": "23182955", "title": "", "text": "as in the case of an individual, except that— * * * * * ★ “(c) In the case of income received by estates of deceased persons during the period of administration or settlement of the estate, * * * there shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year, which is properly paid or credited during such year to any legatee, heir, or beneficiary, but the amount so allowed as a deduction shall be included in computing the net income of the legatee, heir, or beneficiary.” A number of cases are cited by petitioner and respondent bearing upon the construction and proper application of the above-quoted section. As will be observed from an examination of the cases cited in the margin, the prevailing, if not the universal, construction of Sec. 162(c) is that a deduction from estate income is author ized when income is received by the representatives of the estate and passed on to the legatees or distributees during the year as income. If the income coming into the hands of the representatives of the estate is subsequently disbursed to the legatees or distributees as their partial or final distributive portion of the estate it loses its characteristic as income and becomes “property acquired by gift, bequest, devise, or inheritance” which, by Sec. 22(b) (3), 26 U.S.C.A. Int.Rev.Code, § 22(b) (3), is not subject to income tax. The special dividend herein involved was not paid to the distributees of this estate as income to them. Under the law of Minnesota the adminstrators took the title to the assets of the estate for the purposes of administration and during the period of administration until properly disbursed. Granger v. Harriman, 89 Minn. 303, 94 N.W. 869. It is true that such title is qualified by its purpose, i. e., for the marshaling of the assets, payment of debts, the proper distribution to those entitled to the net assets, and the usual incidents of administration. And, although the right" } ]

[ { "docid": "15588655", "title": "", "text": "the partnership for a fixed salary, payable without regard to partnership income, shall be treated, to the extent of such amount, as one who is not a partner, and the partnership shall be allowed a deduction for a business expense. The amount of such payment shall be included in the partner’s gross income, and shall not be considered a distributive share of partnership income or gain. A partner who is guaranteed a minimum annual amount for his services shall be treated as receiving a fixed payment in that amount. [Emphasis supplied.] To the same effect, H. Rept. No. 1337, to accompany H.R. 8300 (Pub. L. No. 591), 83d Cong., 2d Sess., pp. 68, A226-A227. In F. A. Falconer, supra at 1015, a case involving the question whether certain payments were guaranteed payments under section 707(c) with the result that they were taxable to petitioner under section 61(a)(1), we stated: Section 707(c) has no counterpart in the Internal Revenue Code of 1939. It initially appeared in the Internal Revenue Code of 1954. * * * The legislative history of section 707(c) reveals that it was specifically intended to require ordinary income treatment to the partner receiving guaranteed salary payments and to give a deduction at the partnership level. [Fn. omitted.] As the legislative history of section 707 relates, the tax treatments of partners and partnerships were confused and at times contradictory prior to the enactment of the 1954 Code. H. Rept. No. 1337, supra at p. 65; S. Rept. No. 1622, supra at p. 89. Under prior law the tax treatment of compensation paid for a partner’s services was generally based upon the so-called aggregate theory of partnerships. Since a person could not be regarded as an employer and an employee at the same time under this approach, a partner’s compensation for services or salary was considered only a part of his distributive share of partnership profits or losses. Where partnership profits were sufficient, the compensation was treated as a distributive share of profits, Estate of S. U. Tilton et al., 8 B.T.A. 914 (1927), with the result that such distributions" }, { "docid": "7815285", "title": "", "text": "reported their income on a calendar year basis while the joint trust of Johnel A. and william R. Flitcroft reported its income on a fiscal year basis, its first full year beginning December 1, 1953, and ending December 1, 1954. Petitioners reported their income on a calendar year basis, and the returns of income of the partnership were filed on a calendar year basis. Respondent has now conceded that his determination of deficiencies in petitioners’ income for the year 1953 is barred by the statute of limitations, and the only years before us are the years 1954 through 1956. Neither party has directed our attention to any provision of either the Internal Revenue Code of 1939 or the Internal Revenue Code of 1954 which would cause the provisions of the Internal Revenue Code of 1939 to be applicable here except with respect to the income of the joint trust for its fiscal year December 1, 1953, to December 1, 1954. Section 7851 of the Internal Revenue Code of 1954 provides that, except as otherwise provided, chapter 1 of subtitle A of the Internal Revenue Code of 1954 shall apply with respect to taxable years beginning after December 31, 1953, and ending after tbe date of tbe enactment of tbe Internal Revenue Code of 1954. Section 683 of tbe Internal Revenue Code of 1954 provides : (a) General Rule. — This part shall apply only to taxable years beginning after December 31, 1953, and ending after tbe date of the enactment of this title. (b) Exceptions. — In tbe case of any beneficiary of an estate or trust— (1) this part shall not apply to any amount paid, credited, or to be distributed by the estate or trust in any taxable year of such estate or trust to which this part does not apply, and (2) tbe Internal Revenue Code of 1939 shall apply for purposes of determining tbe amount includible in the gross income of the beneficiary. Respondent’s regulations issued under sec. 683, I.R.C., 1954, provides: Part I (section 641 and following), subchapter J, chapter 1 of the Code, applies" }, { "docid": "10389430", "title": "", "text": "tax liability those items [of “income, deduction, and credit”] which would be included in computing the tax liability of a current income beneficiary, including expenses allocable to corpus which enter into the computation of distributable net income. The rules for computing the tax liability of a “current income beneficiary” are set forth in subparts A through D, part I, subchapter J of the Code. Generally speaking, a trust rand its beneficiaries are treated as separate and distinct taxable entities. The broad general rule is that the income of a trust is taxable to the fiduciary, and his taxable income is computed in the same manner as in the case of an individual, sec. 641(b), with specified exceptions. One exception is that a deduction is allowable for income which is distributed currently. Secs. 651 and 661. No provision is made, however, for the distribution of a trust’s losses to its beneficiaries, and no provision is made for a beneficiary to deduct the losses of a trust of which he is the beneficiary. Indeed, section 642(d) specifies that “The benefit of the deduction for net operating losses provided by section 172 shall be allowed to estates and trusts,” thus indicating that they are not distributable to the beneficiaries. The last clause of section 1.671-3 (c), supra — “including expenses allocable to corpus which enter into the computation of distributable net income” — does not include losses of capital incurred in the operation of a business. Mellott v. United States, 257 F.2d 798 (C.A. 3, 1958); George W. Vreeland, 16 T.C. 1041, 1049-1050 (1951); George W. Balkwill, 25 B.T.A. 1147 (1932), affd. 77 F.2d 569 (C.A. 6, 1935), certiorari denied 296 U.S. 609 (1935); George M. Studebaker et al., 2 B.T.A. 1020 (1925). In addition, this rule for apportioning the items of income, deductions, and credits of a trust between its ordinary income and remainder portions was previously contained in section 29.167-1 (c), Kegs. Ill, which interpreted 1939 Code section 167. That section corresponds to section 677 of the 1954 Code. S. Kept. No. 1622, to accompany H.K. 8300 (Pub. L. No. 591)," }, { "docid": "17405431", "title": "", "text": "the Julia Carnell Estate after all allowable deductions for the years 1944, 1945, and 1946 was as follows: Net Income 1944_$95,775.60 1945_ 120, 591. 53 1946_ 80,476.36 The Julia Carnell Estate did not distribute any income during 1944, 1945, or 1946. The executors paid the Federal income taxes on these amounts of net income in accordance with Sections 161 and 162 of the Internal Revenue Code of 1939. 17. The gross income of the Julia Carnell Estate for the year 1947 was $86,885.64. The total deductions from gross income were $65,978.58 other than any deduction for amounts distributable to beneficiaries. This amount of $65,978.58 does not include any deduction for the amount of $188,890.57, the total of the additional amounts paid to legatees as shown in finding 10 hereof, or any part thereof. 18. In the 1947 Federal income tax return of the Julia Carnell Estate the executors reported an amount of $20,- 907.06 ($86,885.64 minus $65,978.58) as gross income less deductions but before any deduction for amounts distributed or distributable to beneficiaries. The return also reported a deduction for distributions of income to legatees, heirs, or beneficiaries of that total of $20,907.06. Accordingly, the executors’ return showed no income tax liability for 1947, and the estate paid no Federal income tax for that year. 19. The amount reported by the plaintiff in the plaintiff’s 1947 Federal income tax return as described in finding 2 hereof is that proportion of the amount of $20,907.06 which the distributions to the plaintiff by the estate during 1947 bear to the total distributions to all legatees, heirs, or beneficiaries by the estate during 1947. No. 232-5I¡. Mary M. B. Patterson 1. The plaintiff filed her Federal income tax return for the calendar year 1947 with the Collector of Internal Eevenue, Baltimore, Maryland, and paid to the collector the income tax of $2,003.98 shown to be due on such return. The plaintiff filed her returns on the cash receipts and disbursements basis. 2. The plaintiff reported in her 1947 Federal income tax return and paid tax on an amount of $851.22 included in income" }, { "docid": "10410725", "title": "", "text": "an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year which is to be distributed currently by the fiduciary to the legatees, heirs, or beneficiaries, but the amount so allowed as a deduction shall be included in computing the net income of the legatees, heirs, or beneficiaries whether distributed to them or not. As used in this subsection, “income which is to be distributed currently” includes income for the taxable year of the estate or trust which, within the taxable year, becomes payable to the legatee, heir, or beneficiary. Any amount allowed as a deduction under this paragraph shall not be allowed as a deduction under subsection (c) of this section in the same or any succeeding taxable year ; Internal Revenue Code of 1939. SEC. 162. NET INCOME. The net income of the estate or trust shall be computed in the same manner and on the same basis as in the case of an individual, except that— ******* (c) In the case of income received by estates of deceased persons during the period of administration or settlement of the estates, and in the case of income which, in the discretion of the fiduciary, may be either distributed to the beneficiary or accumulated, there shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year, which Is properly paid or credited during such year to any legatee, heir, or beneficiary, but the amount so allowed as a deduction shall'be included in computing the net income of the legatee, heir, or beneficiary; Internal Revenue Code of 1939. SEC. 122. NET OPERATING LOSS DEDUCTION. (a) Definition of Net Operating Loss. — As used in this section, the term “net operating loss” means the excess of the deductions allowed by this chapter [Chapter 1 of the Code] over the gross income, with the exceptions, additions, and limitations provided in subsection (d). ******* (d) Exceptions, Additions, and" }, { "docid": "10415235", "title": "", "text": "of the foregoing items, aggregating $1,655.10, which Lawrence Green had deducted in his 1939 income tax return. The first question presented is whether that part of the amount paid by petitioners as transferees of their father’s estate, and by Ralph Green as transferee of his wife’s estate, which represented interest on the estate tax deficiencies of those estates was, as to the petitioners, interest deductible under section 23 (b) of the Internal Revenue Code for the purpose of computing their net income. The petitioners were the residuary legatees of the estate of their father and as such legatees had, prior to 1939, received distribution of the residuary estate equally between them. Ralph Green had in a prior year, and as beneficiary, received one-fourth of the assets of the estate of his wife. After such distribution the estate had assets of only $136.27. Accordingly, the petitioners were transferees of the respective estates and in making payment of the estate tax deficiencies and the .interest thereon they were responding to their liability for the estate tax and interest of the estate of their father and, in the case of Ralph Green, of his wife also. Section 900 (a) of the Internal Revenue Code provides in part as follows: SEC. 9 00. TRANSFERRED ASSETS. (a) Method of Coli-ection. — The amounts of the following liabilities shall, except as hereinafter In this section provided, be assessed, collected, and paid in the same manner and subject to the same provisions and limitations as in the case of a deficiency in a tax imposed by this subchapter (including the provisions in case of delinquency in payment after notice and demand, the provisions authorizing distraint and proceedings in court for collection, and the provisions prohibiting claims and suits for refunds) : (1) Transferees. — The liability, at law or in equity, of a transferee of property of a decedent, in respect of the tax (including interest, additional amounts, and additions to the tax provided by law) imposed by this subchapter. Section 23, I. R. C.,- provides for the deduction from gross income of: “(b) Interest. — All" }, { "docid": "22008372", "title": "", "text": "to redeem these shares. Mrs. Rickey, as executrix, offered the 1,292 shares to the corporation, and at a meeting on June 5, 1967 the Board of Directors passed a resolution that the corporation would purchase them from the executrix. The corporation paid the purchase price of $383,194.28 partly in cash with proceeds from the insurance policy on Mr. Rickey, Sr., and executed a promissory note for the balance. On June 3, 1968 Mr. Rickey, Sr.’s succession was closed and all assets distributed to the beneficiaries, including the proceeds from this redemption. For federal income tax purposes, the estate treated the redemption of the 1,292 shares as proceeds of a distribution in full payment in exchange for stock under Section 302(a) of the Internal Revenue Code of 1954 (hereinafter “The Code”), 26 U.S.C. § 302(a). Since, under the tax laws, the estate’s basis in those shares would have been stepped up to their fair market value at the time of Mr. Rickey, Sr.’s death, the estate reported neither gain nor loss with respect to the transaction. Upon audit of the estate’s federal income tax return for its fiscal year ending April 30, 1968, and of the three beneficiaries’ individual returns for calendar 1968, the Commissioner of Internal Revenue determined that part of the distribution in redemption constituted a dividend to the estate, taxable as ordinary income to the beneficiaries as distributees of the estate. The Commissioner treated $228,990.78 of the total proceeds of the redemption as a redemption of stock to pay death taxes under Sec tion 303 of the Code, and the remaining $154,202.88 as a dividend distribution under Section 301 of the Code. Thus, each beneficiary was deemed to have received one-third of this remaining amount ($51,400.96 each) as ordinary income.. The Commissioner assessed deficiencies against each beneficiary based on this tax treatment; the deficiencies were paid and the beneficiaries brought these suits seeking refunds. In June of 1973, the succession of Mr. Rickey, Sr. was re-opened in the appropriate Louisiana state court so that the executrix could file with the Commissioner a ten-year agreement under Sec. 302(c)(2)(A). The" }, { "docid": "11932816", "title": "", "text": "for the taxable year 1954. As of December 31, 1955, Arcadia had no real estate loans outstanding, and no portion of the $259,-931.32 which had been added to Arcadia’s reserves in 1952 was returned to income for the taxable year 1955. Arcadia’s remaining assets, after the sale to Home, were distributed during 1954 and 1955 to the owners of its guarantee stock, four of whom are the individual petitioners in this review. The individual petitioners have acknowledged their transferee liability in the event that the deficiencies asserted against Arcadia are upeld. The Tax Court determined that the post-1952 reserve accumulation of $259,-931.32 should be restored to income and that there should be included in Arcadia’s income for 1954 the sum of $16,126.10, being the difference between the 1952 addition to reserve of $259,931.32 and the real estate loans of $243,805.22 outstanding at the end of 1954; and that the balance of $243,805.22 should be added to income for 1955, at the end of which year there were no real estate loans outstanding. It was stipulated that the pre1952 reserves of $167,500.00 should not be treated as taxable for either year. Section 23 (k) (1) of the Internal Revenue Code and its successor sections in the 1954 Internal Revenue Code, contain the basic provisions which permit taxpayers to charge off bad debts or to make reasonable additions to bad debt reserves. Section 23 (k) (1) was amended by the 1951 Revenue Act to include mutual savings banks not having capital stock, domestic building and loan associations, and cooperative banks not having capital stock. Section 23 of the Internal Revenue Code of 1939, as amended, in relevant part provides: “SEC. 23. Deductions from gross income. “In computing net income there shall be allowed as deductions: ***** “(k) Bad Debts.— “(1) General rule. — [as amended by Section 124(a) of the Revenue Act of 1942, c. 619, 56 Stat. 798, Section 113(a) of the Revenue Act of 1943, c. 63, 58 Stat. 21, and Section 313(e) of the Revenue Act of 1951, c. 521, 65 Stat. 452.] Debts which become worthless within the" }, { "docid": "13884504", "title": "", "text": "in applying the doctrine here under discussion call the payments “interest” and the payments are ordered by the courts as compensation to the legatees for being deprived of the possession and enjoyment of the money during the period of administration. So the payments are called interest and they look like interest in at least one important respect. Yet the plaintiffs say that, to the extent these payments of so-called interest exceed the actual income of the legacy money during the year in which the legacies are paid, the payments are not interest within the meaning of the income tax statute. The plaintiffs’ principal reliance is on section 162(d) (4) of the Internal Revenue Code of 1939, as added by section 133(a) of the Revenue Act of 1943, c. 63, 58 Stat. 21, 26 U.S.C. (1952 ed.) 162 (d) (4). This section reads, in part, as follows: “If for any taxable year of an estate or trust the deductions allowed under subsection (b) or (c) solely by reason of paragraph (2) or (3) (A) in respect of any income which becomes payable to a legatee, heir, or beneficiary exceed the net income of the estate or trust for such year, computed without such deductions, the amount of such excess shall not be included in computing the net income of such legatee, heir, or beneficiary under subsection (b) or (c).” In explanation of the cryptic language of section 162(d) (4), the content of the other sections referred to therein will be summarized. An estate or trust is, of course, a taxable entity for income tax purposes, separate from the executor or administrator or trustee in his individual capacity. Section 162(b) allows as a deduction from the income of the estate or trust that amount of its income for the taxable year which is currently distributable to beneficiaries, but provides that that amount shall be included in the taxable income of the beneficiaries, whether it is actually distributed to them or not. Section 162(c) provides that if the executor, administrator or trustee has discretion as to whether to distribute income or accumulate it," }, { "docid": "17405417", "title": "", "text": "no income at all. The courts in applying the doctrine here under discussion call the payments “interest” and the payments are ordered by the courts as compensation to the legatees for being deprived of the possession and enjoyment of the money during the period of administration. So the payments are called interest and they look like interest in at least one important respect. Yet the plaintiffs say that, to the extent these payments of so-called interest exceed the actual income of the legacy money during the year in which the legacies are paid, the payments are not interest within the meaning of the income tax statute. The plaintiffs’ principal reliance is on section 162 (d) (4) of the Internal Revenue Code of 1939, as added by section 133 (a) of the Revenue Act of 1943, c. 63, 58 Stat. 21, 26 U. S. C. (1952 ed.) 162 (d) (4). This section reads, in part, as follows: If for any taxable year of an estate or trust the deductions allowed under subsection (b) or (c) solely by reason of paragraph (2) or (3) (A) in respect of any income which becomes payable to a legatee, heir, or beneficiary exceed the net income of the estate or trust for such year, computed without such deductions, the amount of such excess shall not be included in computing the net income of such legatee, heir, or beneficiary under subsection (b) or (c). In explanation of the cryptic language of section 162 (d) (4), the content of the other sections referred to therein will be summarized. An estate or trust is, of course, a taxable entity for income tax purposes, separate from the executor or administrator or trustee in his individual capacity. Section 162 (b) allows as a deduction from the income of the estate or trust that amount of its income for the taxable year which is currently distributable to beneficiaries, but provides that that amount shall be included in the taxable income of the beneficiaries, whether it is actually distributed to them or not. Section 162 (c) provides that if the executor, administrator" }, { "docid": "17333459", "title": "", "text": "Revenue Service to consider all the elements of the trust’s taxable income, in making the allocation, which prompts plaintiff’s complaint. Since trust income is involved, it will help to begin with a brief outline of the special taxing system established, by sub-chapter J of chapter 1 of the 1954 Code, the portion dealing with the .income taxation of estates, trusts, .beneficiaries, and decedents. “The basic principle -underlying the . taxation of * * * ordinary trusts is that all the taxable income is to be taxed as income only once — either to the * * * trust, or to the beneficiary, or in part to each. This is accomplished by allowing the estate or trust a deduction for certain amounts distributed or required to be distributed [whether or not. actually distributed], and taxing the beneficiary on such amounts.” Montgomery’s Federal Taxes, 20.1 (38th ed. 1961). In general, this scheme of taxation is .implemented by treating a trust as a separate taxable entity, the taxable income of which is computed in the same manner, and taxed to the same extent, as the taxable income of an individual — with certain exceptions set forth in the- Code. §§ 641, 642, 651, 1954 I.R.C. Chief among these exceptions is the authorization of a deduction for that “income” of the taxable year which is required to be distributed currently. § 651(a), 1954 I.R.C. This deduction is designed to avoid the double taxation that would result if the income required to be distributed were first taxed to the trust, and then taxed again when distributed to the beneficiaries. So that the in-: come not go untaxed, the Code requires that the beneficiaries include in their gross incomes the-trust income distributable to them, whether it is actually distributed or not. § 652(a) , 1954 I.R.C. The central device utilized to effectuate this “flow-through” scheme of taxation is “distributable net income”— a crucial term in the present case. This is defined by Section 643 (a) as\" the taxable income of the trust with certain important modifications, the most pertinent of which are: 1. Distributions to beneficiaries" }, { "docid": "8600946", "title": "", "text": "the period of administration or settlement of the estate * * * there shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year, which is properly paid or credited during such year to any legatee, heir, or beneficiary, but the amount so allowed as a deduction shall be included in computing the net income of the legatee, heir, or beneficiary.” It is the Commissioner’s contention that this provision does not authorize deduction of payments except when such payments are made to and received by the distributee as income, and that in the present case the $20,504.58, although income of the estate, was distributed to the trustee as corpus of the trust rather than as income thereof, and so was not deductible by the executor from the income of the estate. In support of his position that this payment was received by the trustee as corpus of the trust the Commissioner cites the case of Hawaiian Trust Co. v. Von Holt, 216 U.S. 367, 30 S.Ct. 303, 304, 54 L.Ed. 519. In that case there was a devise of residue to trustees with a provision that the income from “the property which shall be so distributed to” the trustees was to be paid to named beneficiaries. The court held that the language quoted indicated the testator’s intent that the beneficiaries of the trust should not receive any income accruing prior to distribution to the trustees. The case of Weigel v. Commissioner of Internal Revenue, 7 Cir., 96 F.2d 387, 117 A.L.R. 366, also cited by the Commissioner, involved the same question of deduction as does the case at bar. The court there held that the language of the residuary clause indicated that all money received by the trustees as residuary legatees was to constitute corpus of the trust. Accordingly it was held that such amounts distributed to the trustees as represented income of the estate, received by the estate in the taxable year of distribution to the trustees, were not" }, { "docid": "10410724", "title": "", "text": "is incurred in carrying on a business; that is to say, something which must be paid in order to do business. The fact that petitioner’s State income taxes were affected by her business income does not compel the conclusion that they were “attributable to” the business income. The State income tax is of a personal nature imposed on income received by petitioner from all sources, regardless of whether she operated a business. It does not have such a direct relation to the operation of a business as to entitle petitioner to deduct it in computing a net operating loss. Issue 3. The parties have agreed that if the preceding issue is decided adversely to the petitioner, this third issue need not be decided. Decision will be entered wader Bule 50. Internal Revenue Code of 1939. SBC. 162. NET INCOME. The net Income of the estate or trust shall be computed In the same manner and on the same basis as in the ease of an Individual, except that— ******* (b) There shall be allowed as an additional deduction in computing the net income of the estate or trust the amount of the income of the estate or trust for its taxable year which is to be distributed currently by the fiduciary to the legatees, heirs, or beneficiaries, but the amount so allowed as a deduction shall be included in computing the net income of the legatees, heirs, or beneficiaries whether distributed to them or not. As used in this subsection, “income which is to be distributed currently” includes income for the taxable year of the estate or trust which, within the taxable year, becomes payable to the legatee, heir, or beneficiary. Any amount allowed as a deduction under this paragraph shall not be allowed as a deduction under subsection (c) of this section in the same or any succeeding taxable year ; Internal Revenue Code of 1939. SEC. 162. NET INCOME. The net income of the estate or trust shall be computed in the same manner and on the same basis as in the case of an individual, except that—" }, { "docid": "12276796", "title": "", "text": "642(h) Unused loss carryovers and excess deductions on termination available to beneficiaries. — If on the termination of an estate or trust, the estate or trust has — • (1) a net operating loss carryover under section 172 or a capital loss carryover under section 1212, or (2) for the last taxable year of the estate or trust deductions (other than the deductions allowed under subsections (b) or (c)) in excess of gross income for such year, then such carryover or such excess shall be allowed as a deduction, in accordance with regulations prescribed by the Secretary or his delegate, to the beneficiaries succeeding to the property of the estate or trust. . The legislative history of the Internal Revenue Code-.of 1954 clearly indicates that Congress enacted Section 642(h) in order to reverse the result reached in Neave v. Commissioner of Internal Revenue, 17 T.C. 1237 (1952) and other similar cases. The House report accompanying the Code noted :• Under subsection (d) [section 642(h) appeared in section 662(d) Of the' House bill] any unused net operating loss carryover, capital loss carryover, or deductions in excess of gross income (other than deductions for distributions allowed under section 661 or the deduction for personal exemption under section 642(b) upon the termination of an estate or trust are made available, in accordance with regulations, to the beneficiaries or re-maindermen succeeding to the property. Under existing law, these unused loss carryovers are lost when the estate oi trust terminates. (Cf. Neave, 17 T.C. 1237.) [H.R.Rep. No. 1337, 83rd Cong., 2d Sess. A201 (1954) U.S.Code .Congressional and Administrative News, p. 4341], . During the period between the occurrence of an event which causes a trust to terminate and the time when a trust is considered as terminated under this section, the income and the excess of capital gains over capital losses of the trust are in general considered as amounts required to be distributed for the year in which they are received. * * *. . See also Int.Rev.Code of 1954, Section 651. . Section 441. Period for computation of tamable income ***** (b) Taxable" }, { "docid": "12195475", "title": "", "text": "following Findings of Fact and Conclusions of law, which are relevant to the present proceedings: (1) The Tax Court denied the corporation a claimed deduction for the fiscal year, 1957, for depreciation, taken with respect to certain property sold in that year for an amount in excess of its adjusted basis. (2) The Tax Court held that the corporation’s real estate had been sold in condemnation proceedings in 1956, prior to the adoption of a 12 month plan of liquidation, and, therefore, the gain on this sale was ineligible for the non-recognition treatment provided for in Section 337(a) of the Internal Revenue Code of 1954, and was taxable income. (3) The Tax Court held that the corporation failed to distribute substantially all of its assets to its share holders within 12 months from the date of the adoption of the plan of liquidation, and, therefore, the gain upon the sale of these assets was ineligible for the non-recognition treatment provided for in Section 337(a) of the Internal Revenue Code of 1954. (4) The Tax Court held that the income representing the gain on the condemnation was taxable in 1957, when the District Court ordered payment of the award, rather than in 1956, when $200,000.00 was deposited with the Court. Based upon the above findings, the corporation’s income tax deficiency for the fiscal year, 1957, was determined to be $61,459.82, of which $33,368.05 has been assessed and paid, leaving a balance due from the transferees of $28,091.77 with interest. For the fiscal year, 1958, an income tax deficiency of $4,414.32 was found, none of which has been assessed or paid, leaving this balance due from the individual transferees. The corporation and the transferees filed petitions for review of the Tax Court’s decision in these matters, on January 4, 1966. Jurisdiction is conferred on this Court by Section 7482 of the Internal Revenue Code of 1954. The issues for review will be discussed in the order presented above. I. The Commissioner has conceded, for purposes of this review, that the Tax Court erred in denying the taxpayer a deduction in the fiscal" }, { "docid": "7815286", "title": "", "text": "chapter 1 of subtitle A of the Internal Revenue Code of 1954 shall apply with respect to taxable years beginning after December 31, 1953, and ending after tbe date of tbe enactment of tbe Internal Revenue Code of 1954. Section 683 of tbe Internal Revenue Code of 1954 provides : (a) General Rule. — This part shall apply only to taxable years beginning after December 31, 1953, and ending after tbe date of the enactment of this title. (b) Exceptions. — In tbe case of any beneficiary of an estate or trust— (1) this part shall not apply to any amount paid, credited, or to be distributed by the estate or trust in any taxable year of such estate or trust to which this part does not apply, and (2) tbe Internal Revenue Code of 1939 shall apply for purposes of determining tbe amount includible in the gross income of the beneficiary. Respondent’s regulations issued under sec. 683, I.R.C., 1954, provides: Part I (section 641 and following), subchapter J, chapter 1 of the Code, applies to estates and trusts and to beneficiaries only with respect to taxable years which begin after December 81, 1953, and end after August 16, 1954, the date of enactment of the Internal Revenue Code of 1954. In the case of an estate or trust, the date on which a trust is created or amended or on which an estate commences, and the taxable years of beneficiaries, grantors, or decedents concerned are immaterial. This provision applies equally to taxable years of normal and of abbreviated length. (Income Tax. Regs., sec. 1.683-1). This regulation appears to be in accordance with the provisions of the statute. Therefore, except as to the income of the joint trust for its fiscal year December 1, 1953, to December 1, 1954, the taxability of the trust income for all the years here involved is governed by the provisions of the Internal Revenue Code of 1954. SEC. 676. POWER TO REVOKE. (a) General Rule. — The grantor shall be treated as the owner of any portion of a trust, whether or not he" }, { "docid": "13759626", "title": "", "text": "receive for the remainder of his life the income from the securities which was not required to cover the insurance premiums. When the surviving spouse died, the corpus of the trust was to be distributed to the Arents’ son, if he was then living, or if he was dead then to his distributees as defined by the New York statutes on distribution and descent. Lena Arents died on March 11, 1954, survived by her husband. During the life of the donor 28.93% of the net income from the securities subject to the trust was used to pay the insurance premiums. In the Tax Court proceedings, respondents conceded that the value of these securities in excess of the amount required to pay the premiums on the life insurance policies was properly includible in decedent’s taxable estate, since, as to these securities, she had reserved an immediate life estate. Thus, this review involves only the insurance policies and 28.93% of the securities, as to which decedent reserved a life estate only after the death of her husband. Whether the property in issue is includible in the decedent’s taxable estate is governed by § 811(c) (1) (B), as amended, of the Internal Revenue Code of 1939. That section provides that property transferred after March 3, 1931 and before June 7, 1932 shall be included in decedent’s taxable estate only if it would be so by reason of the Joint Resolution of March 3, 1931 (46 Stat. 1516). That Resolution reads as follows: “Resolved * * * that the first sentence of subdivision (c) of section 302 of the Revenue Act of 1926 is amended to read as follows: [Sec. 302. The value of the gross estate of the decedent shall be determined by including the value at the time of his death of all property, real or personal, tangible or intangible, wherever situated.] “‘(c) To the extent of any interest therein of which the decedent has at any time made a transfer, by trust or otherwise, in contemplation of or intended to take effect in possession or enjoyment at or after his death," }, { "docid": "10410715", "title": "", "text": "during 1946 consisted of the following: 1. $17,500.00 in cash paid to her in monthly installments of $2,500.00 each as a family allowance. 2. $52.00 in cash withdrawn by petitioner from the trucking and produce business. 3. Cash balance in Lucky Strike Auto Court account, in the amount of $8,589.02, as of July 31,1946. 4. Cash balance of produce and trucking businesses, in the amount of $11,949.47, as of July 31, 1946. Financial statements submitted to the Probate Court by the administrators of the estate disclose that the estate had a net worth of $120,595.38 on December 31, 1945, and that this net worth had increased to $175,919.96 by July 31,1946. The respondent determined that the net income of the estate for the period January 1, 1946, to August 9, 1946, amounting to $86,193.61, had been distributed to petitioner upon the final distribution of the estate on August 9,1946. Petitioner concedes that certain of the cash distributions made to her during 1946 represent a distribution to her' of portions of the estate’s income for that year. However, she argues that the major portion of the estate’s $86,193.61 income for that year was used to liquidate various debts and establish the trust for the undetermined tax liabilities. Consequently, she contends that the income so used was neither “payable” nor “paid or credited” to her during 1946 and is taxable to the estate rather than to her. Respondent argues that, as a matter of law, the assets which petitioner received as the sole beneficiary upon the final distribution of the estate must be presumed to include the $86,193.61 income earned by the estate during that year. He contends that the 1942 amendment of section 162 (b) of the Internal Revenue Code of 1939 requires that the income earned in the final year of administration be taxable to the beneficiaries and cites Hazel Kirk Carlisle, 8 T. C. 563 (1947), affd. 165 F. 2d 645 (C. A. 6, 1948), to that effect. He argues that the use of the income of the final year of administration to liquidate liabilities and pay taxes cannot" }, { "docid": "12958754", "title": "", "text": "and 1956 the trust reported net income in the respective amounts of $34,-202.03 and $30,346.28. In each return the amount reported was taken as a “Deduction for distributions” to beneficiaries, with the result that the trust reported no taxable income. However, no such distribution was ever made by the trustees to the beneficiaries and in fact the entire income as reported was accumulated by the trust. The Commissioner disallowed said deductions and held the reported income taxable. The Tax Court held that all the income was that of the trust and that the trust is not entitled to deduct any of the income under either § 651, § 661 or § 678 of the 1954 Code; hence the Commissioner did not err in holding that all the income is taxable to the trust and in determining deficiencies against it for the years 1955 and 1956. 26 U.S.C.A. § 641,1954, provides: “§ 641. Imposition of tax “(a) Application of tax, — The taxes imposed by this chapter on individuals shall apply to the taxable income of estates or of any kind of property held in trust, including— ****** “(4) income which, in the discretion of the fiduciary, may be either distributed to the beneficiaries or accumulated.” 26 U.S.C.A. § 651, 1954, provides: “§ 651. Deduction for trusts distributing current income only “(a) Deduction. — In the case of any trust the terms of which— “(1) provide that all of its income is required to be distributed currently, and “(2) do not provide that any amounts are to be paid, permanently set aside, or used for the purposes specified in section 642(c) (relating to deduction for charitable etc., purposes), there shall be allowed as a deduction in computing the taxable income of the trust the amount of the income for the taxable year which is required to be distributed currently. This section shall not apply in any taxable year in which the trust dis tributes amounts other than amounts of income described in paragraph d).” 26 U.S.C.A. § 661,1954, provides: “§ 661. Deduction for estates and trusts accumulating income or distributing corpus" }, { "docid": "17333461", "title": "", "text": "are not deducted,. ■ 2. Capital gains allocable to corpus (as here), and not paid, credited, or required to be distributed to any beneficiary, or paid or permanently set aside for charitable purposes, are excluded. 3. For trusts like plaintiff’s which distribute current income only, extraordinary dividends or taxable stock dividends not paid or credited to any beneficiary because allocated by the fiduciary (in good faith) to principal, are excluded. 4. Tax-exempt interest, “reduced by any amounts which would be deductible in respect of disbursements allocable to such interest but for the provisions of section 265 (relating to disallowance of certain deductions),” is included. Around this concept of “distributable net income” the Code builds its provisions for (a) the deduction allowed the trust for its current distributions to the beneficiaries, and (b) the distributions which the beneficiaries must include in their own gross incomes. “Thus, distributable net income has been termed the measuring rod or yardstick to be employed in determining, on the one hand, the maximum deduction for distributions which may be allowed to the estate or trust and for gauging, on the other hand, the extent to which beneficiaries may be taxable on the distributions.” 6 Mertens “Law of Federal Income Taxation” § 36.04. “Distributable net income” first appears on our stage in plaintiff’s claim that, by excluding capital gains and taxable stock dividends from the allocation base used in determining the amount of administration expenses deductible, the Commissioner of Internal Revenue followed Special Instruction 39 of the instructions to Form 1041, the fiduciary income tax return. Instruction 39 applies to the separate schedule on the form to be used for the computation of “distributable net income,” and says that for this purpose tax-exempt interest is to be reduced by any amounts which, but for the provisions of Section 265, would be deductible in respect of disbursements, expenses, losses, etc., of the trust or estate, directly or indirectly allocable to such interest. The amount of the indirect disbursements, etc., allocable to tax-exempt interest is that amount which bears the same ratio to the total disbursements, etc., of the" } ]

[ { "docid": "16790918", "title": "", "text": "47 L.Ed.2d 746 (1976). In Keane, 522 F.2d at 545, this court noted: “Neither the ultimate success of the fraud nor the actual defrauding of a victim is crucial to a successful prosecution.” The mail fraud statute has been employed with success in combatting political corruption. See United States v. Mandel, 591 F.2d 1347 (4th Cir), conviction aff'd in relevant part on rehearing en banc, 602 F.2d 653 (4th Cir.1979) (per curiam), cert. denied, 445 U.S. 961, 100 S.Ct. 1647, 64 L.Ed.2d 236 (1980); United States v. Brown, 540 F.2d 364 (8th Cir.1976); United States v. Keane, 522 F.2d 534 (7th Cir.1975), cert. denied, 414 U.S. 976, 96 S.Ct. 1481, 47 L.Ed.2d 746 (1976); United States v. Isaacs, 493 F.2d 1124 (7th Cir.), cert. denied 417 U.S. 976, 94 S.Ct. 3184, 41 L.Ed.2d 1146 (1974). The instant case involves corruption of the political process even though the defendant in this case is not a politician. The case was tried to a jury on an “intangible rights” theory basically alleging that the defendant intended to deprive the citizens of Fox Lake of their rights to good government and to the honest and loyal services of public officials, specifically Mayor Hamm. This court previously addressed this issue in United States v. Alexander, 741 F.2d 962 (7th Cir.1984): “A scheme to defraud the citizenry and government of an intangible right, such as honest service, can be contrasted with a scheme to obtain tangible property through fraud. A scheme to obtain tangible property is cognizable under the mail fraud statute regardless of the relationship between' the defendant and his victim. In contrast, an intangible rights scheme is only cognizable when at least one of the schemers has a fiduciary relationship with the defrauded person or entity. * * * There can be no doubt that a nonfiduciary who schemes with a fiduciary to deprive the victim of intangible rights is subject to prosecution under the mail fraud statute.” 741 F.2d at 964. The defendant argues that no evidence was presented to the jury establishing that Mayor Hamm had actually failed to carry out his" } ]

[ { "docid": "10010746", "title": "", "text": "We do agree that the words “scheme or artifice to defraud” don’t reach everything that might strike a court as unethical conduct or sharp dealing, despite broad language to this effect in cases that we criticized in United States v. Dial, supra, 757 F.2d at 170, including our own United States v. Serlin, 538 F.2d 737, 744 (7th Cir.1976). The frequently quoted suggestion in Gregory v. United States, 253 F.2d 104, 109 (5th Cir.1958), that whatever is not a “reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society” is fraud (see, e.g., United States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir.1980)) cannot have been intended, and must not be taken, literally. It is much too broad and, given the ease of satisfying the mailing requirement, illustrated by United States v. Green, 786 F.2d 247, 249-57 (7th Cir.1986), would put federal judges in the business of creating what in effect would be common law crimes, i.e., crimes not defined by statute. However, as we emphasized in Dial, elaborate efforts at concealment — illustrated here by Holzer’s clandestine meeting with Worsek after the FBI investigation began, by his failure to list the “loans” on his Rule 68 statement, and by his repeated public denials of receiving favors of any kind (which certainly included such questionable loans from counsel appearing before him) — are powerful evidence that a defendant’s conduct violates an ethical standard well known to him and to the whole community, and not just something thought up after the fact by a perhaps overly sensitive federal judge. See 757 F.2d at 168; United States v. Brown, 540 F.2d 364, 375 (8th Cir.1976). [71 We need not consider whether the receipt of bribes might be fraud under the mail-fraud statute if done openly. The legal meaning of “fraud” is not limited to deceit or misrepresentation; it includes overreaching, undue influence, and other forms of misconduct. There have been cases, like United States v. Gorny, 732 F.2d 597, 601-02 (7th Cir.1984), where convictions of mail fraud based on bribe-taking" }, { "docid": "10010741", "title": "", "text": "inference that he never intended to repay the money in full, realizing that the lawyers and guarantors of the loans would never press him for repayment, because they would fear retribution — with reason, if one may judge from Worsek’s fate after he stopped making payments on the Zilka loan. Most of the loans, indeed, seem to have been thinly disguised bribes. Several listed on a private record that Holzer kept of his personal debts were crossed out— without having been repaid. The character of the “loans” has a twofold significance. First, it shows that these were not arms-length transactions (though the Illinois Supreme Court’s Rule 68 requires disclosure even of arms-length loans). Neither party to an arms-length transaction is expected to show gratitude, or to feel a sense of residual obligation, to the other. A judge is not “grateful” to Sears Roebuck for selling him a lawnmower at the market price of lawnmowers. It is when the other party to the transaction is doing him a favor that an inference of gratitude, or an inference that a quid pro quo can be expected, may arise and make the failure to disclose the transaction to counsel for the opposing litigant material. Second, the systematic and long-continued receipt of bribes by a public official, coupled with active efforts to conceal the bribe-taking from the public and the authorities (as in Holzer’s Rule 68 filings and his response to voter questionnaires), is fraud (again in its elementary sense of deceit, and quite possibly in other senses as well), even if it is the public rather than counsel that is being kept in the dark. It is irrelevant that, so far as appears, Holzer never ruled differently in a case because of a lawyer’s willingness or unwillingness to make him a loan, so that his conduct caused no demonstrable loss either to a litigant or to the public at large. See, e.g., United States v. Keane, 522 F.2d 534, 541, 546 (7th Cir.1975); United States v. Lovett, 811 F.2d 979, 985 (7th Cir.1987); United States v. Manton, 107 F.2d 834, 846 (2d Cir.1939)." }, { "docid": "10010748", "title": "", "text": "were upheld without consideration of concealment. The issue is academic, since no public official in the United States takes bribes openly, but is in any event not one we need consider here, since the instructions made intent to deceive an element of the fraud with which Holzer was charged. A law review note argues from the legislative history of the mail-fraud statute that Congress never intended the statute to reach a case such as this where the public official does not obtain anything of value from the victims of the fraud — from litigants whose lawyers did not make loans to Holzer, or from the citizens of Illinois whose confidence in their government may have been undermined. Comment, The Intangible-Rights Doctrine and Political-Corruption Prosecutions Under the Federal Mail Fraud Statute, 47 U.Chi.L.Rev. 562 (1980). The argument is repeated in a case pending in the Supreme Court. See Brief for Petitioner Gray in McNally v. United States, Nos. 86-234, 86-286, October Term 1986. The argument depends on the view that the meaning of fraud in the mail-fraud statute was frozen by the conception of fraud held by the framers of the statute when it was first passed back in the nineteenth century. This seems to us the opposite and equally untenable extreme from arguing that fraud is whatever strikes a judge as bad, but in any event the “intangible rights” concept that the argument attacks is too well established in the courts of appeals for us to disturb. We turn to the issue of extortion, defined in the Hobbs Act as “the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear or under color of official right.” 18 U.S.C. § 1951(b)(2). Holzer questions the sufficiency of the evidence to support an inference that the lawyers who made loans to him were acting out of fear. Except in cases involving a threat, or actuality, of force or violence, the payment must be induced either by fear of what the payee might do if payment were not forthcoming, or by the defendant’s" }, { "docid": "21569229", "title": "", "text": "as above stated, and specifically in the state tax law providing for an action at law and authorizing the tax commissioner to issue a warrant and to obtain a lien upon the property of the person failing to pay the tax. N.Y.Tax Law § 1141(a)-(b) (McKinney 1987). Nothing in United States v. Holzer, 840 F.2d 1343 (7th Cir.1988), is to the contrary. There, Judge Posner’s opinion followed McNally and distinguished Carpenter in reversing the mail fraud conviction of an Illinois state trial judge for taking bribes from lawyers with cases before him or from persons who sought appointment as receivers. Indeed, in dictum Judge Posner advances very much the same proposition we rely upon here: McNally would not apply to a corrupt public official who, having received bribes, takes steps to conceal them in order to defeat his public employer’s right to obtain them by means of a suit based on constructive trust principles. See Holzer, 840 F.2d at 1348. D. Enterprise Porcelli argues that the evidence at trial did not prove the extensive enterprise alleged in the indictment. The failure to satisfy United States v. Huber, 603 F.2d 387 (2d Cir.1979), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980), and the material variance between the indictment and the proof require, he claims, a reversal of the RICO conviction. The “enterprise” is a separate element that must be proven in a RICO action. United States v. Turkette, 452 U.S. 576, 583, 101 S.Ct. 2524, 2528, 69 L.Ed.2d 246 (1981). The statute defines “enterprise” to include “any individual, partnership, corporation, association, or other legal entity, and any union or group of individuals associated in fact although not a legal entity.” 18 U.S.C. § 1961(4) (1982). This broad definition makes sense when applied to uses of the word in subsections 1962(a) and (b). The enterprise can be any enterprise, not necessarily one engaged in a pattern of racketeering; indeed, it may be a victim of racketeering. This is consistent with Congress’s goal of protecting legitimate businesses from infiltration by organized crime. See Lynch, RICO: The Crime of Being" }, { "docid": "10010738", "title": "", "text": "hard up for money and asked assistance of anyone he thought might be able to introduce him to a bank, and naturally the persons solicited included lawyers and naturally some of them had matters before him; he had no idea that the lawyers were guaranteeing the loans they helped him to obtain from banks, and he never threatened the lawyers with adverse rulings if they failed to help him and never promised them favorable rulings if they did help him; nor were any of his rulings influenced by the loans; nor, finally, did it occur to him that he had a duty to disclose these dealings to counsel, the state, or the public. Although this is a possible (but highly implausible) characterization of the facts, it is not one that the jury was required to accept. An alternative characterization, one that is both more plausible and fully supported by the evidence at the trial, is that Holzer over a period of many years used his public office to obtain money through deceit and extortion. Fraud in its elementary common law sense of deceit — and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F.2d 163, 168 (7th Cir.1985) — includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. When a judge is busily soliciting loans from counsel to one party, and not telling the opposing counsel (let alone the public), he is concealing material information in violation of his fiduciary obligations. The standard of materiality is an objective one; it does not reach every piece of information that a particular litigant might like to have about a judge. A judge need not disclose information that would not make a reasonable person think him incapable of presiding impartially in the case. Thus he need not, in a case to which Sears" }, { "docid": "10010747", "title": "", "text": "as we emphasized in Dial, elaborate efforts at concealment — illustrated here by Holzer’s clandestine meeting with Worsek after the FBI investigation began, by his failure to list the “loans” on his Rule 68 statement, and by his repeated public denials of receiving favors of any kind (which certainly included such questionable loans from counsel appearing before him) — are powerful evidence that a defendant’s conduct violates an ethical standard well known to him and to the whole community, and not just something thought up after the fact by a perhaps overly sensitive federal judge. See 757 F.2d at 168; United States v. Brown, 540 F.2d 364, 375 (8th Cir.1976). [71 We need not consider whether the receipt of bribes might be fraud under the mail-fraud statute if done openly. The legal meaning of “fraud” is not limited to deceit or misrepresentation; it includes overreaching, undue influence, and other forms of misconduct. There have been cases, like United States v. Gorny, 732 F.2d 597, 601-02 (7th Cir.1984), where convictions of mail fraud based on bribe-taking were upheld without consideration of concealment. The issue is academic, since no public official in the United States takes bribes openly, but is in any event not one we need consider here, since the instructions made intent to deceive an element of the fraud with which Holzer was charged. A law review note argues from the legislative history of the mail-fraud statute that Congress never intended the statute to reach a case such as this where the public official does not obtain anything of value from the victims of the fraud — from litigants whose lawyers did not make loans to Holzer, or from the citizens of Illinois whose confidence in their government may have been undermined. Comment, The Intangible-Rights Doctrine and Political-Corruption Prosecutions Under the Federal Mail Fraud Statute, 47 U.Chi.L.Rev. 562 (1980). The argument is repeated in a case pending in the Supreme Court. See Brief for Petitioner Gray in McNally v. United States, Nos. 86-234, 86-286, October Term 1986. The argument depends on the view that the meaning of fraud in the" }, { "docid": "10010744", "title": "", "text": "for judicial services — once in their taxes (which pay the judges’ salaries), and the second time in fees paid directly to the judge. When, in addition, the judge conceals what he is doing, he commits fraud; for what he is- concealing is clearly material information to his employer, the state. United States v. Rabbitt, 583 F.2d 1014, 1024-26 (8th Cir.1978), does not require a different conclusion. A state legislator received a secret commission from an architectural firm to help it get state contracts. Not only was there no evidence that his efforts on the firm’s behalf caused any actual loss to the state, but the court was also not convinced that his conduct had deprived the state of its right to honesty and fairness in the performance of the defendant’s official duties, because the contracts were awarded on a merit basis by officials over whom the defendant had no power. We very much doubt the soundness of this reasoning. The fact that the defendant did not control the award of contracts should not be decisive if his position as a state legislator gives his recommendations a weight independent of their intrinsic merit. But the case in any event is different from this one. Holzer received money from persons appearing before him in his official capacity rather than from persons having business before other judges or before the executive or legislative branches of state government. The Eighth Circuit upheld Rabbitt’s conviction of mail fraud for peddling his influence to obtain legislation favorable to a trade association that had bribed him. Holzer argues that he could not be deemed to have acted fraudulently when there was no clear-cut ethical rule prohibiting him from receiving loans from lawyers with business before him. This thrust is wide of the mark, since even if the receipt of the loans were not prohibited, the failure to disclose their receipt, at the very least to counsel opposing the lenders, would be fraudulent in the circumstances. But this point to one side, we do not agree that the absence of an explicit rule should make a difference." }, { "docid": "22537875", "title": "", "text": "1883). By the same token, the crime of fraud has often included deceptive seduction, although that crime often includes no property or monetary loss. See State v. Parker, 114 Wash. 428, 195 P. 229 (1921); cf. United States v. Condolon, 600 F. 2d 7 (CA4 1979) (fraudulent scheme to seduce women supported wire fraud conviction). Of course, even if the term was not that expansively defined at common law, we have held that Congress went beyond the common-law definitions in enacting this statute. Durland, 161 U. S., at 313-314. In a recent decision upholding the mail fraud conviction of an Illinois judge, despite the absence of proof that anyone suffered loss of tangible property, the Court of Appeals for the Seventh Circuit reaffirmed the broad meaning of the word “defraud.” United States v. Holzer, 816 F. 2d 304 (1987). Writing for the court, Judge Posner explained: “Fraud in its elementary common law sense of deceit — and this is one of the meanings that fraud bears in the statute, see United States v. Dial, 757 F. 2d 163, 168 (7th Cir. 1985) — includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. When a judge is busily soliciting loans from counsel to one party, and not telling the opposing counsel (let alone the public), he is concealing material information in violation of his fiduciary obligations. “Second, the systematic and long-continued receipt of bribes by a public official, coupled with active efforts to conceal the bribe-taking from the public and the authorities ... is fraud (again in its elementary sense of deceit, and quite possibly in other senses as well), even if it is the public rather than counsel that is being kept in the dark. It is irrelevant that, so far as appears, Holzer never ruled differently in a case because of a lawyer’s willingness or unwillingness to make him" }, { "docid": "1803571", "title": "", "text": "before Judge Higgins or before us that this statute establishes a duty of disclosure the violation of which gives rise to criminal liability under the defraud clause of § 371. The Government has either overlooked or chosen to ignore this criminal statute prohibiting concealment of assets from the IRS. Both the Supreme Court and the courts of appeals have recognized, as Justice Stevens has observed, that Nineteenth-Century statutes criminalizing fraud were written in broad general language on the understanding that the courts would have wide latitude in construing them to achieve the remedial purposes that Congress had identified. The wide open spaces in statutes such as these are most appropriately interpreted as implicit delegations of authority to the courts to fill in the gaps in the common law tradition of case by case adjudication. McNally, 107 S.Ct. at 2888. Likewise, the Seventh Circuit has said that the “meaning of fraud” cannot be considered as “frozen by the conception of fraud held by the framers of the statute when it was first passed back in the nineteenth century.” United States v. Holzer, 816 F.2d 304, 310 (7th Cir.), vacated on other grounds, — U.S. -, 108 S.Ct. 53, 98 L.Ed.2d 18 (1987). When courts rely on their inherent common-law powers to interpret criminal statutes, considerations peculiar to the criminal context must be acknowledged. Because our federal government possesses only the limited powers given to it in the constitution, and because lower federal courts possess no powers beside those expressly granted to them by Congress, it has long been recognized that federal trial courts lack the power to create common law crimes. “The legislative authority of the Union must first make an act a crime, affix a punishment to it, and declare the court that shall have jurisdiction of the offence.” United States v. Hudson, 11 U.S. (7 Cranch) 32, 33-34, 3 L.Ed. 259 (1812). See United States v. Coolidge, 14 U.S. (1 Wheat.) 415, 4 L.Ed. 124 (1816). Thus, “[i]t is well settled that there are no common law offences against the United States.” United States v. Eaton, 144 U.S. 677," }, { "docid": "22951580", "title": "", "text": "In the context of honest services fraud, where “undisclosed, biased decision making for personal gain, whether or not tangible loss to the public is shown, constitutes a deprivation of honest services,” Sawyer, 85 F.3d at 724, an active fraud or deceit is not necessary. [T]he courts that have accepted the notion that a deprivation of intangible rights is within the statute[ ] recognize that an active misrepresentation is not necessary. Instead, the prosecution need prove only a recognizable scheme formed with intent to defraud regardless of how that intent manifests itself in execution. For example, a public official engaged in bribery by mad need not actively make any misrepresentations in order to violate section 1341. Frankel, 721 F.2d at 920-21. “The legal meaning of ‘fraud’ is not limited to deceit or misrepresentation; it includes overreaching, undue influence, and other forms of misconduct.” Holzer, 816 F.2d at 309. Nor is a showing of public harm required. Sawyer, 85 F.3d at 724 (“... whether or not tangible loss to the public is shown”); Holzer, 816 F.2d at 308 (“It is irrelevant that ... [Holzer’s] conduct caused no demonstrable loss either to a litigant or to the public at large.”); Silvano, 812 F.2d at 760 (“It is immaterial whether [the defendant] personally profited from the scheme or whether the City suffered a financial loss from it.”) (citing United States v. Lemm, 680 F.2d 1193, 1205 (8th Cir.1982)); United States v. Mandel, 591 F.2d 1347, 1358 (4th Cir.1979) (approving the prosecution of allegedly corrupt politicians who did not deprive the citizens of anything of economic value); United States v. Keane, 522 F.2d 534 (7th Cir.1975) (same). In this case, Antico’s failure to disclose his financial interest in the success of Ric-ciardi’s expediting business and his failure to recuse himself from approving the permit applications he filled out constitute “deceit” for purposes of the mail fraud statute. “[A]n official’s intentional violation of the duty to disclose provides the requisite ‘deceit’ ”. Sawyer, 85 F.3d at 732 (citing Silvano, 812 F.2d at 760). The fact that Antico did not conceal his relationship with Ricciardi from his" }, { "docid": "21569228", "title": "", "text": "vendor is “ ‘under a duty to pay the tax ... regardless of whether or not ... [he] collects it from the purchaser.’ ” 2 N.Y.2d at 203, 140 N.E.2d at 248, 159 N.Y.S.2d at 154-55. We do not think that Porcelli was in any different situation vis-a-vis the State here. He was obliged to pay the tax whether or not he collected it from the customers. By virtue of his scheme to defraud, i.e., the false sales tax returns, he was in a very real sense “depriving” the State of its property. The fact that the State has a claim, a chose in action, for the difference between what was paid and the tax shown on the false return may mean that it has not finally been deprived of that chose in action. However, the fact remains that until the fraud was discovered it had been deprived of its property. Porcelli’s conduct, in short, was aimed at depriving the State of its property, the choses in action represented generally in the state tax law as above stated, and specifically in the state tax law providing for an action at law and authorizing the tax commissioner to issue a warrant and to obtain a lien upon the property of the person failing to pay the tax. N.Y.Tax Law § 1141(a)-(b) (McKinney 1987). Nothing in United States v. Holzer, 840 F.2d 1343 (7th Cir.1988), is to the contrary. There, Judge Posner’s opinion followed McNally and distinguished Carpenter in reversing the mail fraud conviction of an Illinois state trial judge for taking bribes from lawyers with cases before him or from persons who sought appointment as receivers. Indeed, in dictum Judge Posner advances very much the same proposition we rely upon here: McNally would not apply to a corrupt public official who, having received bribes, takes steps to conceal them in order to defeat his public employer’s right to obtain them by means of a suit based on constructive trust principles. See Holzer, 840 F.2d at 1348. D. Enterprise Porcelli argues that the evidence at trial did not prove the extensive enterprise" }, { "docid": "10010745", "title": "", "text": "decisive if his position as a state legislator gives his recommendations a weight independent of their intrinsic merit. But the case in any event is different from this one. Holzer received money from persons appearing before him in his official capacity rather than from persons having business before other judges or before the executive or legislative branches of state government. The Eighth Circuit upheld Rabbitt’s conviction of mail fraud for peddling his influence to obtain legislation favorable to a trade association that had bribed him. Holzer argues that he could not be deemed to have acted fraudulently when there was no clear-cut ethical rule prohibiting him from receiving loans from lawyers with business before him. This thrust is wide of the mark, since even if the receipt of the loans were not prohibited, the failure to disclose their receipt, at the very least to counsel opposing the lenders, would be fraudulent in the circumstances. But this point to one side, we do not agree that the absence of an explicit rule should make a difference. We do agree that the words “scheme or artifice to defraud” don’t reach everything that might strike a court as unethical conduct or sharp dealing, despite broad language to this effect in cases that we criticized in United States v. Dial, supra, 757 F.2d at 170, including our own United States v. Serlin, 538 F.2d 737, 744 (7th Cir.1976). The frequently quoted suggestion in Gregory v. United States, 253 F.2d 104, 109 (5th Cir.1958), that whatever is not a “reflection of moral uprightness, of fundamental honesty, fair play and right dealing in the general and business life of members of society” is fraud (see, e.g., United States v. Bohonus, 628 F.2d 1167, 1171 (9th Cir.1980)) cannot have been intended, and must not be taken, literally. It is much too broad and, given the ease of satisfying the mailing requirement, illustrated by United States v. Green, 786 F.2d 247, 249-57 (7th Cir.1986), would put federal judges in the business of creating what in effect would be common law crimes, i.e., crimes not defined by statute. However," }, { "docid": "22537876", "title": "", "text": "F. 2d 163, 168 (7th Cir. 1985) — includes the deliberate concealment of material information in a setting of fiduciary obligation. A public official is a fiduciary toward the public, including, in the case of a judge, the litigants who appear before him, and if he deliberately conceals material information from them he is guilty of fraud. When a judge is busily soliciting loans from counsel to one party, and not telling the opposing counsel (let alone the public), he is concealing material information in violation of his fiduciary obligations. “Second, the systematic and long-continued receipt of bribes by a public official, coupled with active efforts to conceal the bribe-taking from the public and the authorities ... is fraud (again in its elementary sense of deceit, and quite possibly in other senses as well), even if it is the public rather than counsel that is being kept in the dark. It is irrelevant that, so far as appears, Holzer never ruled differently in a case because of a lawyer’s willingness or unwillingness to make him a loan, so that his conduct caused no demonstrable loss either to a litigant or to the public at large. See, e. g., United States v. Keane, 522 F. 2d 534, 541, 546 (7th Cir. 1975); United States v. Lovett, 811 F. 2d 979, 985 (7th Cir. 1987); United States v. Manton, 107 F. 2d 834, 846 (2d Cir. 1939). How can anyone prove how a judge would have ruled if he had not been bribed?” Id., at 307-308. The general definition of the term “defraud” does not support, much less compel, today’s decision. Even if there were historical evidence of a limited definition of “fraud,” the Court’s holding would reflect a strange interpretation of legislation enacted by the Congress in the 19th century. Statutes like the Sherman Act, the civil rights legislation, and the mail fraud statute were written in broad general language on the understanding that the courts would have wide latitude in construing them to achieve the remedial purposes that Congress had identified. The wide open spaces in statutes such as these" }, { "docid": "6172224", "title": "", "text": "POSNER, Circuit Judge. A jury found Reginald Holzer, formerly an Illinois state trial judge, guilty of mail fraud, 18 U.S.C. § 1341, extortion, 18 U.S. C. § 1951 (Hobbs Act), and racketeering, 18 U.S.C. § 1962 (Racketeering Influenced and Corrupt Organizations, or RICO, Act). Judge Marshall imposed concurrent sentences of 18 years on the extortion and racketeering charges and 5 years on the mail fraud charges. We affirmed. 816 F.2d 304 (7th Cir.1987). Holzer petitioned for certiorari, challenging only the mail fraud counts. While his petition was pending, the Supreme Court decided McNally v. United States, — U.S. -, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987), reversing the conviction of a public official for mail fraud based on the same “intangible rights” doctrine on which Holzer’s conviction for mail fraud had been based. At the suggestion of the Solicitor General, the Court remanded our decision in this case for reconsideration in light of McNally. — U.S. -, 108 S.Ct. 53, 98 L.Ed.2d 18 (1987). We invited briefs and argument. Holzer asks us to direct his acquittal of mail fraud and order a new trial for extortion and racketeering, while the government asks us to stand by our previous decision and affirm the judgment in its entirety. The facts that led up to Holzer’s prosecution and conviction are fully stated in our previous opinion. Over a period of many years Holzer had extracted a long series of bribes, most of them in the form of “loans” that he did not intend to repay, from lawyers with cases before him or from persons who sought appointment as receivers. The government characterized this conduct as a scheme to defraud (among others) the State of Illinois, its citizens, and the parties on the other side of the cases from the lawyers who bribed him, of the right to the administration of justice by an honest judge. The government made no effort to show at trial, however, that Holzer had received any money or property from the victims of the fraud (citizens, litigants, lawyers), as opposed to the lawyers and receivers who were his accomplices." }, { "docid": "10010742", "title": "", "text": "inference that a quid pro quo can be expected, may arise and make the failure to disclose the transaction to counsel for the opposing litigant material. Second, the systematic and long-continued receipt of bribes by a public official, coupled with active efforts to conceal the bribe-taking from the public and the authorities (as in Holzer’s Rule 68 filings and his response to voter questionnaires), is fraud (again in its elementary sense of deceit, and quite possibly in other senses as well), even if it is the public rather than counsel that is being kept in the dark. It is irrelevant that, so far as appears, Holzer never ruled differently in a case because of a lawyer’s willingness or unwillingness to make him a loan, so that his conduct caused no demonstrable loss either to a litigant or to the public at large. See, e.g., United States v. Keane, 522 F.2d 534, 541, 546 (7th Cir.1975); United States v. Lovett, 811 F.2d 979, 985 (7th Cir.1987); United States v. Manton, 107 F.2d 834, 846 (2d Cir.1939). How can anyone prove how a judge would have ruled if he had not been bribed? And if it were necessary to show that the judge had ruled differently than he would have done if he had not been bribed, it would mean that a judge would not be committing fraud when he demanded and received equal bribes from both sides of a lawsuit. A system in which judges are paid by the parties rather than by the state does not inherently distort judgment; it is, indeed, the system used in arbitration, which is a type of adjudication, and it was also used in the judicial system of England until well into the nineteenth century. But the State of Illinois has decided that judges shall not be compensated out of fees paid by the litigants, and a judge who disregards this decision deprives the state of whatever benefits (what the cases call the public’s “intangible rights”) it hoped to obtain from the system of compensation that it did adopt. He also makes litigants pay double" }, { "docid": "10010743", "title": "", "text": "How can anyone prove how a judge would have ruled if he had not been bribed? And if it were necessary to show that the judge had ruled differently than he would have done if he had not been bribed, it would mean that a judge would not be committing fraud when he demanded and received equal bribes from both sides of a lawsuit. A system in which judges are paid by the parties rather than by the state does not inherently distort judgment; it is, indeed, the system used in arbitration, which is a type of adjudication, and it was also used in the judicial system of England until well into the nineteenth century. But the State of Illinois has decided that judges shall not be compensated out of fees paid by the litigants, and a judge who disregards this decision deprives the state of whatever benefits (what the cases call the public’s “intangible rights”) it hoped to obtain from the system of compensation that it did adopt. He also makes litigants pay double for judicial services — once in their taxes (which pay the judges’ salaries), and the second time in fees paid directly to the judge. When, in addition, the judge conceals what he is doing, he commits fraud; for what he is- concealing is clearly material information to his employer, the state. United States v. Rabbitt, 583 F.2d 1014, 1024-26 (8th Cir.1978), does not require a different conclusion. A state legislator received a secret commission from an architectural firm to help it get state contracts. Not only was there no evidence that his efforts on the firm’s behalf caused any actual loss to the state, but the court was also not convinced that his conduct had deprived the state of its right to honesty and fairness in the performance of the defendant’s official duties, because the contracts were awarded on a merit basis by officials over whom the defendant had no power. We very much doubt the soundness of this reasoning. The fact that the defendant did not control the award of contracts should not be" }, { "docid": "22537877", "title": "", "text": "a loan, so that his conduct caused no demonstrable loss either to a litigant or to the public at large. See, e. g., United States v. Keane, 522 F. 2d 534, 541, 546 (7th Cir. 1975); United States v. Lovett, 811 F. 2d 979, 985 (7th Cir. 1987); United States v. Manton, 107 F. 2d 834, 846 (2d Cir. 1939). How can anyone prove how a judge would have ruled if he had not been bribed?” Id., at 307-308. The general definition of the term “defraud” does not support, much less compel, today’s decision. Even if there were historical evidence of a limited definition of “fraud,” the Court’s holding would reflect a strange interpretation of legislation enacted by the Congress in the 19th century. Statutes like the Sherman Act, the civil rights legislation, and the mail fraud statute were written in broad general language on the understanding that the courts would have wide latitude in construing them to achieve the remedial purposes that Congress had identified. The wide open spaces in statutes such as these are most appropriately interpreted as implicit delegations of authority to the courts to fill in the gaps in the common-law tradition of case-by-case adjudication. The notion that the meaning of the words “any scheme or artifice to defraud” was frozen by a special conception of the term recognized by Congress in 1872 is manifestly untenable. As Judge Posner put it: “The argument depends on the view that the meaning of fraud in the mail-fraud statute was frozen by the conception of fraud held by the framers of the statute when it was first passed back in the nineteenth century. This seems to us the opposite and equally untenable extreme from arguing that fraud is whatever strikes a judge as bad, but in any event the ‘intangible rights’ concept that the argument attacks is too well established in the courts of appeals for us to disturb.” Holzer, 816 F. 2d, at 310. Finally, there is nothing in the legislative history of the mail fraud statute that suggests that Congress intended the word “fraud” to have a" }, { "docid": "6172237", "title": "", "text": "the first Holzer has deprived the state of its intangible right to honest civil servants. This is an intangible-rights case and only an intangible-rights case. There is a further point. Merely because the constructive-trust doctrine allows the beneficiary to obtain restitution of the money or property held in trust, it does not follow that if the “trustee” fails to turn over the trust proceeds when the trust arises (perhaps before he knows they are impressed with a constructive trust) he has stolen the proceeds. We know of no criminal prosecutions based on the theory that the constructive trustee is a thief. We can, however, imagine a different and more persuasive theory linking constructive-trust principles to mail fraud than that advanced by the government: the corrupt public official, having received bribes, takes steps to conceal them in order to defeat the public employer’s right to obtain them by means of a suit based on constructive-fraud principles. The employer’s right to the bribe money is a thing of value, equivalent to money or property—a tangible right, in other words—and the effort at concealment could thus be the scheme to defraud forbidden by the mail fraud statute. There were efforts at concealment here as there are in virtually every bribery case, but no evidence was presented that the efforts were designed to prevent the state from obtaining the bribe money, as distinguished from preventing the state from discovering the bribery and firing or prosecuting Holzer or turning him over to the federal authorities for prosecution. Indeed, so far as we know, the State of Illinois has made no effort to obtain any of the bribe money from Holzer. It is a nice question whether, if the government wanted to present evidence that Holzer was guilty of mail fraud under the approach just sketched, it could do so without violating the double-jeopardy clause. Ordinarily when a conviction is reversed because of trial error, the defendant can be retried even if the evidence introduced at trial would not have been sufficient to sustain his conviction but for the error — even if, in other words," }, { "docid": "22951581", "title": "", "text": "308 (“It is irrelevant that ... [Holzer’s] conduct caused no demonstrable loss either to a litigant or to the public at large.”); Silvano, 812 F.2d at 760 (“It is immaterial whether [the defendant] personally profited from the scheme or whether the City suffered a financial loss from it.”) (citing United States v. Lemm, 680 F.2d 1193, 1205 (8th Cir.1982)); United States v. Mandel, 591 F.2d 1347, 1358 (4th Cir.1979) (approving the prosecution of allegedly corrupt politicians who did not deprive the citizens of anything of economic value); United States v. Keane, 522 F.2d 534 (7th Cir.1975) (same). In this case, Antico’s failure to disclose his financial interest in the success of Ric-ciardi’s expediting business and his failure to recuse himself from approving the permit applications he filled out constitute “deceit” for purposes of the mail fraud statute. “[A]n official’s intentional violation of the duty to disclose provides the requisite ‘deceit’ ”. Sawyer, 85 F.3d at 732 (citing Silvano, 812 F.2d at 760). The fact that Antico did not conceal his relationship with Ricciardi from his co-workers does not vindicate his failure to disclose to his supervisors the conflict arising from their financial arrangement nor his failure to recuse himself from acting on the permit applications she submitted. It also does not. preclude a jury from finding Antico possessed the requisite intent to defraud the citizens of Philadelphia. Woodward, 149 F.3d at 62 (“Woodward’s intent is ... demonstrated by his failure to disclose his conflict of interest although he was required to do so.”). The fact that Antico never reported any conflict of interest to his superiors while at L & I, despite his knowledge of the state and local conflict of interest laws, supports the jury’s finding of intent to deceive necessary for a wire fraud conviction. In fact, Antico continued the fraudulent scheme even after L & I Commissioner Levin specifically instructed him in 1993 to have no involvement in approving Rieciar-di’s permit applications. Despite Levin’s instructions, Antico urged Ricciardi to submit permits on behalf of the Philadelphia Sign Company, which he approved. Antico also prepared the permit application" }, { "docid": "18720939", "title": "", "text": "POSNER, Circuit Judge. The Justice Department in recent years has devoted substantial resources to prosecuting corrupt public officials. An important weapon in this campaign has been the “intangible rights” doctrine of federal mail and wire fraud (18 U.S.C. §§ 1341, 1343), a doctrine whereby public officials who accept bribes are deemed by doing so to have defrauded the public of its right to the honest provision of public services. Last year, in a stunning setback for the Department, the Supreme Court rejected the intangible-rights doctrine. McNally v. United States, — U.S.-, 107 S.Ct. 2875, 97 L.Ed.2d 292 (1987). The Department has tried to minimize the blow by pressing the federal courts, including this court, to interpret the McNally decision as narrowly as possible — so narrowly, in fact, as to save convictions that had been obtained before McNally under the intangible-rights approach. We confronted one such effort in United States v. Holzer, 840 F.2d 1343 (7th Cir.1988). Holzer was an Illinois state court judge who had been convicted of mail fraud for having deprived the people of the state of their right to the honest administration of justice, by soliciting and accept ing bribes. The Department tried to save the conviction by arguing that under Illinois law the state had a constructive trust in the bribe moneys received by Holzer, so that by failing to turn them over to the state he deprived it of its tangible right to them. We were not persuaded, and vacated the conviction. The present case involves another, and closely related, effort to save a pre-McNally intangible-rights conviction. John Ward, an attorney, was indicted in 1986 and convicted in 1987 (shortly before the McNally decision) of two counts of mail fraud. The fraud arose out of Ward’s representation of David Washington, who had been charged with drunken driving and whose case was pending before an Illinois state court judge, John McCollom, in Chicago. McCollom was known to take bribes. His “bagman,” Chicago policeman Ira Black-wood, would receive the cash bribe from the attorney wanting a case fixed and would pass the money on to McCollom." } ]

[ { "docid": "23266408", "title": "", "text": "present, conditions a single railroad is, if not a legal, largely a practical, monopoly, and the arrangement by which the control of these two competing roads was merged in a single corporation broadens and extends such monopoly. I cannot look upon it as other than an unreasonable combination in restraint of interstate commerce — óne in conflict with state law and within the letter and spirit of the statute and the power of Congress.” Of the Sherman Act and kindred statutes, this court, speaking by Mr. Justice McKenna, said in National Cotton Oil Co. v. Texas, 197 U. S. 115, 129: “According . to them, competition not combination, should be the law of trade. If there is evil in this it is ac-. cepted as less than that which may result from the unification of interest, and the power such unification gives. And that legislatures may so ordain this court has decided. United States v. E. C. Knight Co., 156 U. S. 1; United States v. Trans-Missouri Freight Association, 166 U. S. 290; United States v. Joint Traffic Association, 171 U. S. 505; Northern Securities Co. v. United States, 193 U. S. 197; Swift & Co. v. United States, 196 U. S. 375.” In the recent discussion of the history and meaning of the act ih the Standard Oil and Tobacco Cases this court declared that the statute should be given a reasonable construction, with a view to reaching those undue restraints of interstate trade which are intended to be prohibited and punished, and in those cases it is clearly stated that the decisions in the former cases had been made upon an application of that rule and there was no suggestion that, they had not been correctly decided. In the Tobacco Case, after referring to the previous decision in the Standard Oil Case and the decisions in the Trans-Missouri and Joint Traffic Cases, the doctrine was tersely summarized by the Chief Justice, speaking for the court, as follows (p. 179): “Applying the rule of reason to the construction of the statute, it was held in the Standard Oil Case" } ]

[ { "docid": "8483785", "title": "", "text": "Monopoly, University of Illinois Law Forum, Vol. 1950, Winter, No. 4, p. 515. And see, M. A. Adelman, Effective Competition and the Antitrust Laws, 1941, 61 Harvard Law Rev., p. 1289; Edward H. Levi, The Antitrust Laws and Monopoly, 1947, 14 U. of Chicago Law Review, p. 153; Eugene V. Rostow, The New Sherman Act: A Positive Instrument of Progress, 1947, 14 U. of Chicago Law Review, p. 567; Eugene V. Rostow, Monopoly Under The Sherman Act, 1949, 43 Ill.Law Rev., p. 745. . D. R. Wilder Mfg. Co. v. Corn Products Refining Co., 1915, 236 U.S. 165, 173, 35 S.Ct. 398, 59 L.Ed. 520; Fifty Years of Sherman Act Enforcement, 1938, 49 Yale Law Journal, p. 2S4, 286; see additional references in Balian Ice Gream Co. v. Arden Farms, supra, Notes 20, 21, 22. . D. R. Wilder Mfg. Co. v. Corn Products Refining Co., supra, Shotkin v. General Electric Co., 10 Cir., 1948, 171 F.2d 236; see, Thomas C. McConnell, The Treble Damage Action, in University of Illinois Law Forum, Vol. 1950, Winter, No. 4, p. 256 et seq. . 15 U.S.C.A. § 16. . Emich Motors Corp. v. General Motors Corp., 1951, 340 U.S. 558, 71 S.Ct. 408. . Emich Motors Corp. v. General Motors Corp., supra, 340 U.S. at page 571, 71 S.Ct. at page 415. . United States v. Paramount Pictures, Inc., 1948, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260. . Unified States v. Paramount Pictures, Inc.., D.C.N.Y.1946, 66 F.Supp. 323, 345. . United States v. Paramount Pictures, Inc., 1948, 334 U.S. 131, 144, 68 S.Ct. 915, 923, 92 L.Ed. 1260. And see, Bertrand, Evans and Blanchard, The Motion Picture Industry, A Pattern of Control, 40-41 (TNEC, Monograph No. 43, 1941) cited in Schine Chain Theatres v. United States, 1947, 334 U.S. 110, 121, 68 S.Ct. 947, 92 L.Ed. 1245. . Schine Chain Theatres v. United States, 1947, 334 U.S. 110, 121, 68 S.Ct. 947, 953, 92 L.Ed. 1245. . United States v. Paramount Pictures, Inc., 1948, 334 U.S. 131, 144-148, 68 S.Ct. 915, 92 L.Ed. 1260; Schine Chain Theatres v. United States," }, { "docid": "19313899", "title": "", "text": "make the doing of any act other than the act of conspiring a condition of liability.” See also U. S. v. Paramount Pictures Inc., 334 U.S. 131, 142, 68 S.Ct. 915, 92 L.Ed. 1260 (1948). In Duplex Printing Press Co. v. Deering, 254 U.S. 443, 465, 41 S.Ct. 172,176, 65 L.Ed. 349, 356 (1920) in speaking of the Sherman Act after quoting that part of Section 1 of the Act applicable to the illegality of conspiracy thereunder, goes on to say: “The accepted definition of a conspiracy is, a combination of two or more persons by concerted action to accomplish a criminal or unlawful purpose or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means.” See also U. S. v. Perlstein, 126 F.2d 789 (3d Cir. 1942). There is no need to show any specific intent to restrain trade if a conspiracy to fix prices is shown to exist in an industry, the very nature of which involves large shipments of coal from this District in Pennsylvania to other states. See U. S. v. Griffith, 334 U.S. 100,105, 68 S.Ct. 941, 944, 92 L.Ed. 1236, 1242 (1947); U. S. v. Patten, 226 U.S. 525, 543, 33 S.Ct. 141, 145, 57 L.Ed. 333, 342 (1912). In the Patten case it was said: . . the conspirators must be held to have intended the necessary and direct consequences of their acts, and cannot be heard to say the contrary. In other words, by purposely engaging in a conspiracy which necessarily and directly produces the result which the statute is designed to prevent, they are, in legal contemplation, chargeable with intending that result.” “Proof that there was a conspiracy, that its purpose' was to raise prices, and that it caused or contributed to a price rise is proof of the actual consummation or execution of a conspiracy under § 1 of the Sherman Act.” U. S. v. Socony-Vacuum Oil Co., 310 U.S. 150 at 219, 60 S.Ct. 811 at 842, 84 L.Ed. 1129 at 1166 (1939). “And the amount of interstate or foreign trade involved is not" }, { "docid": "2423458", "title": "", "text": "(8 Cir. 1964). Twenty per cent alone of a market would be insufficient to achieve a monopoly. While size is an earmark of monopoly power, a substantial part of the market must be controlled by the monopolist to enable the raising and lowering of prices and the undue restriction on competition. Of nine cases condemning monopolies under § 2 of the Act the percentage of market share ranges from 70 per cent in United States v. Paramount Pictures, Inc., 334 U.S. 131, 167, 68 S.Ct. 915, 92 L.Ed. 1260 (1948) to 100 per cent in the United States v. Pullman Co., supra. The United States Supreme Court in United States v. United States Steel Corporation, 251 U.S. 417, 444, 40 S.Ct. 293, 297, 64 L.Ed. 343, 8 A.L.R. 1121 (1920) refused to hold a monopoly existed on a market share of 50 per cent or less, reasoning “[t]he power attained was much greater than that possessed by any one competitor — it was not greater than that possessed by all of them. Monopoly, therefore, was not achieved * * In considering the question of monopoly in United States v. Aluminum Co. of America, 148 F.2d 416, 424 (2 Cir. 1945), the Court held defendant’s 90 per cent of the market was a monopoly but that “* * * it is doubtful whether sixty or sixty-four per cent would be enough and certainly thirty-three per cent is not.” We need not decide in this case what percentage less than 50 per cent alone might produce a monopoly under certain circumstances peculiar to the market concerned, but we do think a 20 per cent market share under the circumstances of this case is competitively inadequate to sustain a monopoly and thus permit price dictation and the ability to exclude competition. In Kansas City Star, supra, this Court quoting American Tobacco Co. v. United States, 328 U.S. at 811, 66 S.Ct. 1125, 90 L.Ed. 1575, recognized that the hallmark of monopoly is that “* * * power exists to raise prices or to exclude competition when it is desired to do so.” 240" }, { "docid": "2584550", "title": "", "text": "to be determined by the relationship of the unreasonable restraints of trade to the position of the defendant in the market. That a new principle has been injected into the interpretation of Section 4 of the Sherman Act is amply demonstrated by the following comparison. The purpose of the remedy in an. anti-trust suit was initially defined in Standard Oil Co. of New Jersey v. United States, 1911, 221 U. S. 1, 78, 31 S.Ct. 502, 523, 55 L.Ed. 619, 34 L.R.A.jN.S., 834, Ann.Cas.l912D, 734 “1st. To forbid the doing: in the future of acts like those which we have found to have been done in the past which would be violative of the statute. 2d. The exertion of such measure of relief as will effectually dissolve the combination found to exist in violation of the statute, and thus neutralize the extension and continually operating force which the possession of the power unlawfully obtained has brought and will continue to bring about.” The same thoughts were expressed in the Schine case, but the “fruits” theory was added. Divestiture or dissolution, it was said, serves several functions: “(1) It puts an end to the combination or conspiracy when that is itself the violation. (2) It deprives the antitrust defendants of the benefits of their conspiracy■_ (3) It is designed to break up or. render-impotent the monopoly power which violates the Act.” Schine Chain Theatres v.. United States, 1948, 334 U.S. 110, 128-129,. 68 S.Ct. 947, 957, 92 L.Ed. 1245. It is clear from the last function enumerated in the Schine case and, as heretofore suggested, that a satisfactory starting point in this remedy phase is an inquiry into the existence of monopoly power Such power, if found to exist, must be reduced to impotence. To further the detection of monopoly power, attention must also be given to recent cases which discuss, the facts that indicate its presence. These cases must be understood as defining-monopoly power for purposes of finding-violations of the Sherman' Act in the first: instance. Two basic signs of monopoly-power are size and vertical integration. In¡ a short-hand summary" }, { "docid": "17336100", "title": "", "text": "well as against the completed result.’ ****** “Hence the existence of power ‘to exclude competition when it is desired to do so’ is itself a violation of [Sherman Act] § 2, provided it is coupled with the purpose or intent to exercise that power.” United States v. Griffith, supra, 334 U.S. at pages 105-107, 68 S.Ct. at page 944. Thus we find it not necessary to find a specific intent to restrain trade or eliminate a competitor or to create a monopoly. It is necessary to find that the restraint of trade or monopoly results as a consequence of the critical act, and that such act was done with the specific intent of accomplishing that act, when the actor acts from such a position that the natural result or necessary effect accomplishes the proscribed act. The actual result need not be the object of the specific intent. We therefore rule that there was no error in refusing the appellants’ proposed instructions 8 and 18 (alleged errors 3(m) and 3(n)). Cf. Times-Picayune Pub. Co. v. United States, supra, 345 U.S. at page 614, 73 S.Ct. at page 883, where the Court said: “The * * * contracts must be tested under the Sherman Act’s-general prohibition on unreasonable restraints of trade. For purposes of § 1, ‘(a) restraint may be unreasonable either because a restraint otherwise reasonable is accompanied with, a specific intent to accomplish a forbidden restraint, or because it falls within the class of restraints that are illegal per se.’ United States v. Columbia Steel Co., 334 U.S. 495, 522 [68 S.Ct. 1107, 1121, 92 L.Ed. 1533] (1948). * *x* * * *x- * “[I]t ‘[is] unreasonable per se to foreclose competitors from any substantial market.’ ” Id., 345 U.S. at page 608, 73 S.Ct. at page 880. Mr. Justice Clarke in Times-Picayune then goes on: “Since the requisite intent is inferred whenever unlawful effects are found, United States v. Griffith, 334 U.S. 100, 105, 108 [68 S.Ct. 941, 944, 946, 92 L.Ed. 1236] (1948); United States v. Patten, 226 U.S. 525, 543 [33 S.Ct. 141, 145, 57 L.Ed. 333]" }, { "docid": "2584549", "title": "", "text": "“could retain the. full dividends of their monopolistic practices and profit from the unlawful restraints of trade which they had inflicted on competitors.” 334 U.S. at page 128, 68 S.Ct. at page 957, 92 L.Ed. 1245. (Emphasis added). Divestiture, like restitution, had the purpose of depriving a defendant of the gains of his wrongful conduct. The National Lead case was distinguished on the ground that “ * * * there was no showing that the plants sought to be divested were either unlawfully acquired or used in a manner violative of the antitrust laws.” 334 U.S. at page 128, 68 S.Ct. at page 957, 92 L.Ed. 1245. In United States v. Paramount Pictures, 1948, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, the Court indicated that divestiture is warranted where the acquisitions were the fruits of monopolistic practices or restraints of trade, or if lawfully acquired, they were utilized as part of a conspiracy to eliminate or suppress competition in furtherance of the ends of the conspiracy. The propriety of divestiture, it seems, is to be determined by the relationship of the unreasonable restraints of trade to the position of the defendant in the market. That a new principle has been injected into the interpretation of Section 4 of the Sherman Act is amply demonstrated by the following comparison. The purpose of the remedy in an. anti-trust suit was initially defined in Standard Oil Co. of New Jersey v. United States, 1911, 221 U. S. 1, 78, 31 S.Ct. 502, 523, 55 L.Ed. 619, 34 L.R.A.jN.S., 834, Ann.Cas.l912D, 734 “1st. To forbid the doing: in the future of acts like those which we have found to have been done in the past which would be violative of the statute. 2d. The exertion of such measure of relief as will effectually dissolve the combination found to exist in violation of the statute, and thus neutralize the extension and continually operating force which the possession of the power unlawfully obtained has brought and will continue to bring about.” The same thoughts were expressed in the Schine case, but the “fruits” theory" }, { "docid": "23047042", "title": "", "text": "defendants, which was held not to be unlawful per se, was conceived with an intent to monopolize or was of such a character as to confer a known monopoly power. If the power be established, a specific intent to monopolize need not be shown. As was said by Justice Douglas in United States v. Griffith, 334 U.S. 100, 105, 68 S.Ct. 941, 944, 92 L.Ed. 1236, and referred to in United States v. Paramount Pictures, Inc., 334 U.S. 131, 173, 68 S.Ct. 915, 92 L.Ed. 1260: “It is, however, not always necessary to find a specific intent to restrain trade or to build a monopoly in order to find that the antitrust laws have been violated. It is sufficient that a restraint of trade or monopoly results as the consequence of a defendant’s conduct or business arrangements. United States v. Patten, 226 U.S. 525, 543, 33 S. Ct. 141, 145, 57 L.Ed. 333, 44 L.R.A.,N.S., 325; United States v. Masonite Corp., 316 U.S. 265, 275, 62 S.Ct. 1070, 1076, 86 L.Ed. 1461. To require a greater showing would cripple the Act. As stated in United States v. Aluminum Co. of America, 2 Cir., 148 F. 2d 416, 432, ‘no monopolist monopolizes unconscious of what he is doing.’ Specific intent in the sense in which the common law used the term is necessary only where the acts fall short of the results condemned by the Act.” In dealing with the effect of vertical integration upon monopoly, the opinion of the Supreme Court directs us to consider more explicitly than we did in our original opinion whether monopoly exists as to first-run theatres throughout the nation, in the 92 largest'cities, \"and in local situations. It also directs us to determine whether there has been a geographic distribution of theatre ownership among the major defendants. . The opinion also says: . “It is clear, so far' as the five majors are concerned,. that the aim of the conspiracy was exclusionary, i.e. it was designed to strengthen their hold on the exhibition field. In other words, the conspiracy had monopoly in exhibition for one" }, { "docid": "23047041", "title": "", "text": "ways other than those which we expressly mention. Hence on remand of the cases the freedom of the District Court to reconsider the adequacy of decree is not limited to those parts we have specifically indicated.” 334 U.S. at page 166, 68 S.Ct. at page 933. It directed our further consideration of monopoly, divestiture and expansion of theatre holdings, giving as one reason the following: “As we have seen, the District Court considered competitive bidding as an alternative to divestiture in the sense that it concluded that further consideration of divestiture should not be had until competitive bidding had been tried and, found wanting. Since we eliminate from the decree the provisions for competitive bidding, it is necessary to set aside the findings on divestiture so that a new start on this phase of the cases may be made on their remand.” 334 U.S. at page 175, 68 S.Ct. at page 937. As further reasons for directing a reconsideration of the above issues, we were asked to determine whether the vertical integration of the major defendants, which was held not to be unlawful per se, was conceived with an intent to monopolize or was of such a character as to confer a known monopoly power. If the power be established, a specific intent to monopolize need not be shown. As was said by Justice Douglas in United States v. Griffith, 334 U.S. 100, 105, 68 S.Ct. 941, 944, 92 L.Ed. 1236, and referred to in United States v. Paramount Pictures, Inc., 334 U.S. 131, 173, 68 S.Ct. 915, 92 L.Ed. 1260: “It is, however, not always necessary to find a specific intent to restrain trade or to build a monopoly in order to find that the antitrust laws have been violated. It is sufficient that a restraint of trade or monopoly results as the consequence of a defendant’s conduct or business arrangements. United States v. Patten, 226 U.S. 525, 543, 33 S. Ct. 141, 145, 57 L.Ed. 333, 44 L.R.A.,N.S., 325; United States v. Masonite Corp., 316 U.S. 265, 275, 62 S.Ct. 1070, 1076, 86 L.Ed. 1461. To require a" }, { "docid": "22335002", "title": "", "text": "was primarily to arrest apprehended consequences of intercorporate relationships before those relationships could work their evil, which may be at or any time after the acquisition, depending upon the circumstances of the particular case. The Senate declared the objective of the Clayton Act to be as follows: “. . . Broadly stated, the bill, in its treatment of unlawful restraints and monopolies, seeks to prohibit and make unlawful certain trade practices which, as a rule, singly and in themselves, are not covered by the Act of July 2, 1890 [the Sherman Act], or other existing antitrust acts, and thus, by making these practices illegal, to arrest the creation of trusts, conspiracies, and monopolies in their incipiency and before consummation. . . .” S. Rep. No. 698, 63d Cong., 2d Sess. 1. (Emphasis added.) “Incipiency” in this context denotes not the time the stock was acquired, but any time when the acquisition threatens to ripen into a prohibited effect. See Transamerica Corp. v. Board of Governors, 206 F. 2d 163, 166. To accomplish the congressional aim, the Government may proceed at any time that an acquisition may be said with reasonable probability to contain a threat that it may lead to a restraint of commerce or tend to create a monopoly of a line of commerce. Even when the purchase is solely for investment, the plain language of § 7 contemplates an action at any time the stock is used to bring about, or in attempting to bring about, the substantial lessening of competition. Prior cases under § 7 were brought at or near the time of acquisition. See, e. g., International Shoe Co. v. Federal Trade Comm’n, 280 U. S. 291; V. Vivaudou, Inc. v. Federal Trade Comm’n, 54 F. 2d 273; Federal Trade Comm’n v. Thatcher Mfg. Co., 5 F. 2d 615, rev’d in part on another ground, 272 U. S. 554; United States v. Republic Steel Corp., 11 F. Supp. 117; In re Vanadium-Alloys Steel Co., 18 F. T. C. 194. None of these cases holds, or even suggests, that the Government is foreclosed from bringing the action" }, { "docid": "2584540", "title": "", "text": "the advantage of experience, trade connections and the elite of personnel.' Only in case we interpret ‘exclusion’ as limited to manoeuvres not honestly industrial, but actuated solely by a de sire to prevent competition, can such a course, indefatigably pursued, be deemed not ‘exclusionary.’ So to limit it would in our judgment emasculate the Act; would permit just such consolidations as it was designed to prevent.” American Tobacco Co. v. U. S., 1946, 328 U.S. 781, 814, 66 S. Ct. 1125, 1141, 90 L.Ed. 1575; U. S. v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416, 431. The American Tobacco case summarized the currently controlling principles of monopoly litigation: “The authorities support the view that the material consideration in determining whether a monopoly exists is not that prices are raised and that competition actually is excluded but that power exists to raise prices or to exclude competition when it is desired to do so.” 328 U.S. at page 811, 66 S.Ct. at page 1139, 90 L.Ed. 1575. (Emphasis added). As I understand the foregoing language, it means that the mere existence of monopoly power, though not exercised abusively, is some indication of illegality. A violation of the statute will come to completion if the defendant has nothing more than a purpose or intent to exercise the power, American Tobacco Co. v. United States, 1946, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575; United States v. Griffith, 1948, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236, but as the cases show, a “purpose or intent” is present if the acquisition or retention of the power comes about as a consequence of defendant’s conduct or business arrangements. United States v. Griffith, 1948, 334 U.S. 100, 105-107, 68 S.Ct. 941, 945, 92 L.Ed. 1236; United States v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416. In considering the matter of monopoly power, two ingredients are of outstanding significance: viz., the power to fix prices and the power to exclude competitors. Concurrent with this modification regarding the substantive law, a reinterpretation of Section 4 of the Sherman Act" }, { "docid": "12809117", "title": "", "text": "other cases referred to by National Screen support the position that this consent decree had nationwide res judicata, collateral estoppel effect on persons who were not parties or involved. . There is no doubt that the general rule requires a finding of specific intent to monopolize. See Schine Chain Theatres v. United States, 1948, 334 U.S. 110, 68 S.Ct. 947, 92 L.Ed. 1245; National Screen Service Corp. v. Poster Exchange, Inc., 5 Cir., 1962, 305 F.2d 647. And we have such a finding here. But we also have a finding that a monopoly would result from National Screen’s conduct. As the Court said in United States v. Griffith, 1948, 334 U.S. 100, 105, 68 S.Ct. 941, 944, 92 L.Ed. 1236, 1242, it is “not always necessary to find a specific intent to restrain trade or to build a monopoly in order to find that the antitrust laws had been violated. It is sufficient that a restraint of trade or monopoly results as the consequence of a defendant’s conduct or business arrangement.” . National Screen acquired its position as the sole producer of standard accessories for motion pictures produced by the major domestic producers in the 1940s under exclusive contracts. We do not pass on the legality of those exclusive dealing contracts. See Lawlor, supra. It is enough here that National Screen had monopoly power at the manufacturing level and used it to prevent competition at the distributor-jobber level. As the Court said in United States v. Griffith, 1948, 334 U.S. 100, 107, 68 S.Ct. 941, 945, 92 L.Ed. 1236, 1243, it “follows a fortiori that the use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is unlawful.” . 1959 ?161,200 1960 8 84,058 1961 8244,900 . There was evidence that indicated that in some licenses from some producers there were percentage-of-profits provisions under which National Screen did, however, continue to make payments to producers from its Atlanta operation. We do not, however, consider these payments the basis for the District Court’s finding nor of central importance here. . After" }, { "docid": "2584555", "title": "", "text": "v. Paramount Pictures, Inc., 1948, 334 U. S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, it is a relevant consideration in ascertaining monopoly power. “Likewise bearing on the question whether monopoly -power is created by the vertical integration, is the nature of the market to be -served * * *, and the leverage on the market which the -particular vertical integration creates or makes possible.” 334 U. S. at page 174, 68 S.Ct. at page 937, 92 L.Ed. 1260. But it was left to the Supreme Court in the -Columbia Steel -c'ase to reassure that the Sherman Act took cognizance of the economic needs and organization of American industry. The fact that a subsidiary will in all probability deal only with the parent for -goods the parent can furnish does not make the acquisition of such subsidiary unlawful. But, “ * * * When other elements of Sherman Act violations are present, the fact of corporate relationship is material and can be considered in the determination of whether restraint or attempt to restrain exists.” United States v. Columbia Steel Co., 1948, 334 U.S. 495, 523, 68 S.Ct. at page 1122, 92 L.Ed. 1533. “ * * * vertical integration as such without more, cannot be held violative of the Sherman Act. * * * the extent of permissible integration must be governed, as other 'factors in Sherman Act violations, by the other circumstances of individual cases. Technological advances may easily require a basic industry plant to expand its processes into semi-finished or finished goods so as to produce desired articles in greater volume and with less expense. “ * * * no direction has appeared of a public policy that forbids, per se, an expansion of facilities of an existing company to meet the needs of new markets of a community, whether that community is nationwide or county-wide. * * * If businesses are to be forbidden from entering into different stages of production that order must come from Congress, not the courts.” 334 U.S. at page 525-526, 68 S.Ct. at page 1123, 92 L.Ed. 1533. The conclusion is inescapable," }, { "docid": "2584541", "title": "", "text": "foregoing language, it means that the mere existence of monopoly power, though not exercised abusively, is some indication of illegality. A violation of the statute will come to completion if the defendant has nothing more than a purpose or intent to exercise the power, American Tobacco Co. v. United States, 1946, 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575; United States v. Griffith, 1948, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236, but as the cases show, a “purpose or intent” is present if the acquisition or retention of the power comes about as a consequence of defendant’s conduct or business arrangements. United States v. Griffith, 1948, 334 U.S. 100, 105-107, 68 S.Ct. 941, 945, 92 L.Ed. 1236; United States v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416. In considering the matter of monopoly power, two ingredients are of outstanding significance: viz., the power to fix prices and the power to exclude competitors. Concurrent with this modification regarding the substantive law, a reinterpretation of Section 4 of the Sherman Act has amplified the purpose of the remedy. When the offense consisted of the unlawful exercise of power, the purpose of the remedy was to inhibit the potential for abuse, and the need for a remedy was determined by the likelihood of recurrence of abusive practices. In the situation where monopoly power had been unlawfully acquired, followed by a substantial period of voluntary forbearance from abuse of power, remedial measures were held inappropriate. The abandonment of abuse was a sufficient indication of future lawful behavior to permit unlawfully acquired power to remain unmolested. United States v. American Can Co., D.CD.Md.1916, 230 F. 859; United States v. U. S. Steel Corp., 1920, 251 U.S. 417, 40 S.Ct. 293, 64 L.Ed. 343, 8 A.L.R. 1121; Contra: United States v. International Harvester Co., D.C.D.Minn.1914, 214 F. 987. The culmination of this view was reached in United States v. International Harvester Co., 1927, 274 U.S. 693, 47 S.Ct. 748, 71 L. Ed. 1302. With a procedural setting closely approximating that involved in the instant case, the Court found the existence" }, { "docid": "2584551", "title": "", "text": "was added. Divestiture or dissolution, it was said, serves several functions: “(1) It puts an end to the combination or conspiracy when that is itself the violation. (2) It deprives the antitrust defendants of the benefits of their conspiracy■_ (3) It is designed to break up or. render-impotent the monopoly power which violates the Act.” Schine Chain Theatres v.. United States, 1948, 334 U.S. 110, 128-129,. 68 S.Ct. 947, 957, 92 L.Ed. 1245. It is clear from the last function enumerated in the Schine case and, as heretofore suggested, that a satisfactory starting point in this remedy phase is an inquiry into the existence of monopoly power Such power, if found to exist, must be reduced to impotence. To further the detection of monopoly power, attention must also be given to recent cases which discuss, the facts that indicate its presence. These cases must be understood as defining-monopoly power for purposes of finding-violations of the Sherman' Act in the first: instance. Two basic signs of monopoly-power are size and vertical integration. In¡ a short-hand summary of the law, Judge Hand, iii this case, said: “That percentage (90%) is enough to constitute a monopoly; it is doubtful whether sixty or sixty-four percent would be enough; and certainly thirty-three per cent is not.” United States v. Aluminum Co. of America, 2 Cir., 1945, 148 F.2d 416, 424. The most recent and authoritative statement as to what constitutes unlawful size and market domination is contained in the opinion which decided United States v. Columbia Steel Co., 1948, 334 U. S. 495, 68 S.Ct. 1107, 92 L.Ed. 1533. The issue involved therein was the propriety under the .Sherman Act of the acquisition by the United States Steel Corporation of the Consolidated Steel Corporation. The latter company was a fabricator of rolled steel. The merger was opposed on two grounds: 1) that it unlawfully reduced competition by diminishing the market of those competitors of United States Steel who produced rolled steel, and 2) that it unlawfully reduced United States Steel’s competition in the fabricated steel market. The Court found against the government on both grounds." }, { "docid": "15255853", "title": "", "text": "both specific intent and anticompetitive effects; either alone is a sufficient basis for the imposition of liability upon a business entity wielding monopoly power. Griffith, 334 U.S. at 105, 68 S.Ct. at 944-945; Columbia Steel, 334 U.S. at 531-32, 68 S.Ct. at 1126-1127. This rule proceeds from the premise that although monopolies are tolerated, they are not cherished. Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d 263, 274 (2d Cir.1979), cert. denied, 444 U.S. 1093, 100 S.Ct. 1061, 62 L.Ed.2d 783 (1980). Thus, a business entity that possesses monopoly power cannot lawfully exercise it with the specific intent of restraining competition because such actions entail a “dangerous probability” that the consequences prohibited by the Sherman Act may result. Griffith, 334 U.S. at 105-06, 68 S.Ct. at 944-945, citing Swift & Co. v. United States, 196 U.S. 375, 396, 25 S.Ct. 276, 279, 49 L.Ed. 518 (1905). Similarly, a monopolist acting with a “pure heart” may not engage in activities which would directly and necessarily result in the unreasonable restraint of competition because that result is the specific evil which the Sherman Act was passed to prevent. Id.; Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d at 271-75. As the Supreme Court made plain in Griffith, 334 U.S. at 107-08, 68 S.Ct. at 945- 946, [i]t follows a fortiori that the use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is unlawful. ... If monopoly power can be used to beget monopoly, the Act becomes a feeble instrument indeed.... [An action by a monopolist] may yield price or other lawful advantages to the buyer. It may not, however, be used to monopolize or to attempt to monopolize interstate trade or commerce. Nor, as we hold in United States v. Paramount Pictures, Inc., [334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948),] may it be used to stifle competition by denying competitors less favorably situated access to the market. In the context of vertical integration, the requisite specific intent may be shown where the vertical integration was part" }, { "docid": "2584554", "title": "", "text": "percentage command of a market varies with the setting in which that factor is placed.” 334 U. S. at pages 527-528, 68 S.Ct. at page 1124, 92 L.Ed. 1533. But, in the background of the Columbia Steel case lurks the fact that United States Steel controlled 51 per cent of the rolled steel and ingot capacity in the market therein considered. Moreover, Columbia Steel was a case presenting the issue of permissibility of merger. It is not unreasonable to suggest that a court may act more readily to keep apart what has never been joined together, than to dismember an existing entity which, in general, has well served the public. If a percentage control of the market is viewed, not as a short cut to decision, but rather as a short-hand expression of power when evaluating resources, trade, and the nature of the market, it can be said that Columbia Steel is not inconsistent with the summary guide announced by Judge Hand. Vertical integration is simply a particular of size. As viewed in United States v. Paramount Pictures, Inc., 1948, 334 U. S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, it is a relevant consideration in ascertaining monopoly power. “Likewise bearing on the question whether monopoly -power is created by the vertical integration, is the nature of the market to be -served * * *, and the leverage on the market which the -particular vertical integration creates or makes possible.” 334 U. S. at page 174, 68 S.Ct. at page 937, 92 L.Ed. 1260. But it was left to the Supreme Court in the -Columbia Steel -c'ase to reassure that the Sherman Act took cognizance of the economic needs and organization of American industry. The fact that a subsidiary will in all probability deal only with the parent for -goods the parent can furnish does not make the acquisition of such subsidiary unlawful. But, “ * * * When other elements of Sherman Act violations are present, the fact of corporate relationship is material and can be considered in the determination of whether restraint or attempt to restrain exists.” United" }, { "docid": "15255854", "title": "", "text": "is the specific evil which the Sherman Act was passed to prevent. Id.; Berkey Photo, Inc. v. Eastman Kodak Co., 603 F.2d at 271-75. As the Supreme Court made plain in Griffith, 334 U.S. at 107-08, 68 S.Ct. at 945- 946, [i]t follows a fortiori that the use of monopoly power, however lawfully acquired, to foreclose competition, to gain a competitive advantage, or to destroy a competitor, is unlawful. ... If monopoly power can be used to beget monopoly, the Act becomes a feeble instrument indeed.... [An action by a monopolist] may yield price or other lawful advantages to the buyer. It may not, however, be used to monopolize or to attempt to monopolize interstate trade or commerce. Nor, as we hold in United States v. Paramount Pictures, Inc., [334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260 (1948),] may it be used to stifle competition by denying competitors less favorably situated access to the market. In the context of vertical integration, the requisite specific intent may be shown where the vertical integration was part of “a calculated scheme to gain control over an appreciable segment of the market and to restrain or suppress competition, rather than an expansion to meet legitimate business needs.” United States v. Paramount Pictures, Inc., 334 U.S. 131, 174, 68 S.Ct. 915, 937, 92 L.Ed. 1260 (1948). Specific intent to monopolize is also found where the monopolist, or would-be monopolist, engages in predatory tactics or “dirty tricks.” See, e.g., Byars v. Bluff City News Co., 609 F.2d 843, 853-54 (6th Cir.1979) (Byars ). The record before us discloses no evidence of Star Co. engaging in any “dirty tricks” or predatory practices against its contract carriers. Liability based on specific intent can be negated where valid business justifications exist for the monopolist’s actions. Cf. Eastman Kodak Co. v. Southern Photo Materials Co., 273 U.S. 359, 375, 47 S.Ct. 400, 404, 71 L.Ed. 68 (1927) (absence of valid business justification for manufacturer’s refusal to sell to dealers at wholesale is grounds for imposing antitrust liability). See also Becker v. Egypt News Co., 713 F.2d 363, 368 (8th" }, { "docid": "4331124", "title": "", "text": "his associates decided in 1974 to liquidate Heatransfer Corporation. IV. UNLAWFUL TYING A tying arrangement, generally stated, is an agreement by which one party agrees to sell a product (the tying product), but only upon condition that the buying party also purchases another product (the tied product) which the buyer would ordinarily not purchase, where the effect is to substantially lessen competition. Northern Pacific Railway Co. v. United States, 356 U.S. 1, 5-6, 78 S.Ct. 514, 518, 2 L.Ed.2d 545, 549-550 (1958). In Northern Pacific, the Supreme Court stated: [Tying agreements] are unreasonable in and of themselves whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a “not insubstantial” amount of interstate commerce is affected. International Salt Co. v. United States, 332 U.S. 392, 68 S.Ct. 12, 92 L.Ed. 20; Cf. United States v. Paramount Pictures, 334 U.S. 131, 156-159, 68 S.Ct. 915, 928-929, 92 L.Ed. 1260; United States v. Griffith, 334 U.S. 100, 68 S.Ct. 941, 92 L.Ed. 1236. Of course where the seller has no control or dominance over the tying product so that it does not represent an effectual weapon to pressure buyers into taking the tied item any restraint of trade attributable to such tying arrangements would obviously be insignificant at most. As a simple example, if one of a dozen food stores in a community were to refuse to sell flour unless the buyer also took sugar it would hardly tend to restrain competition in sugar if its competitors were ready and able to sell flour by itself. 356 U.S. at 6-7, 78 S.Ct. at 518-519, 2 L.Ed.2d at 550. The Court then determined what was to be considered sufficient economic power of the seller to make the tying agreement an illegal one: While there is some language in the Times-Picayune [Publishing Co. v. U. S., 345 U.S. 594, 73 S.Ct. 872, 97 L.Ed. 1277], opinion which speaks of “monopoly power” or “dominance” over the tying product as a necessary precondition for application of the rule of per" }, { "docid": "19313898", "title": "", "text": "were made up, each entry as to what a company’s price was at a certain time was entered by me when their price circular was received and in hand.” While the evidence in a conspiracy case need not show an express or formal agreement or that the members by words spoken or written stated between themselves what their objective or purpose was to be or the details thereof, or the means by which the object or purpose was to be accomplished, U. S. v. Paramount Pictures, 334 U.S. 131, 142, 68 S.Ct. 915, 92 L.Ed. 1260 (1948), the evidence in this case is overwhelming that a conspiracy was indeed knowingly formed and that the six corporate co-conspirators as well as Frank and Tomaine were members of it. See Nash v. U. S., 229 U.S. 373, 378, 33 S.Ct. 780, 782, 57 L.Ed. 1232, 1236 (1912) where Justice Holmes stated “. . . the Sherman Act punishes the conspiracies, at which it is aimed on the common-law footing, — that is to say, it does not make the doing of any act other than the act of conspiring a condition of liability.” See also U. S. v. Paramount Pictures Inc., 334 U.S. 131, 142, 68 S.Ct. 915, 92 L.Ed. 1260 (1948). In Duplex Printing Press Co. v. Deering, 254 U.S. 443, 465, 41 S.Ct. 172,176, 65 L.Ed. 349, 356 (1920) in speaking of the Sherman Act after quoting that part of Section 1 of the Act applicable to the illegality of conspiracy thereunder, goes on to say: “The accepted definition of a conspiracy is, a combination of two or more persons by concerted action to accomplish a criminal or unlawful purpose or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means.” See also U. S. v. Perlstein, 126 F.2d 789 (3d Cir. 1942). There is no need to show any specific intent to restrain trade if a conspiracy to fix prices is shown to exist in an industry, the very nature of which involves large shipments of coal from this District in Pennsylvania to other" }, { "docid": "2584548", "title": "", "text": "defendant’s plants even though they may have been acquired or used incidentally or relative to the agreements. The Court said: “It is not for the courts to realign and redirect effective and lawful competition where it already exists and needs only to be released from restraints that violate the antitrust laws. To separate the operating units of going concerns without more supporting evidence than has been presented here to establish either the need for, or the feasibility of, such separation would amount to an abuse of discretion.” 332 U. S. at page 353, 67 S.Ct. at page 1650, 91 L. Ed. 2077. In the following year, however, the Supreme Court made a clear declaration as to the purpose to be served by an anti-trust remedy. In Schine Theatres v. United States, 1948, 334 U.S. 110, 68 S.Ct. 947, 92 L.Ed. 1245, after finding that defendants had conspired to restrain and monopolize trade in the exhibition of motion pictures, the Court held that an injunction against future violations was an insufficient remedy. Without divestiture the defendants “could retain the. full dividends of their monopolistic practices and profit from the unlawful restraints of trade which they had inflicted on competitors.” 334 U.S. at page 128, 68 S.Ct. at page 957, 92 L.Ed. 1245. (Emphasis added). Divestiture, like restitution, had the purpose of depriving a defendant of the gains of his wrongful conduct. The National Lead case was distinguished on the ground that “ * * * there was no showing that the plants sought to be divested were either unlawfully acquired or used in a manner violative of the antitrust laws.” 334 U.S. at page 128, 68 S.Ct. at page 957, 92 L.Ed. 1245. In United States v. Paramount Pictures, 1948, 334 U.S. 131, 68 S.Ct. 915, 92 L.Ed. 1260, the Court indicated that divestiture is warranted where the acquisitions were the fruits of monopolistic practices or restraints of trade, or if lawfully acquired, they were utilized as part of a conspiracy to eliminate or suppress competition in furtherance of the ends of the conspiracy. The propriety of divestiture, it seems, is" } ]

[ { "docid": "13324601", "title": "", "text": "the murder involved “torture or depravity of mind and that as a result thereof was outrageously or wantonly vile, horrible or inhuman,” was unconstitutionally vague, in violation of the Eighth and Fourteenth Amendments. In returning its recommendation of death as the punishment in Battle’s case, the jury specifically stated that it found beyond a reasonable doubt “the torture and depravity of mind that as a result thereof [the murder] was outrageously wanton, vile, horrible and inhuman.” The district court rejected Battle’s claim for habeas relief on this issue, and we affirm. A state has a constitutional responsibility to tailor and apply its capital punishment law in a manner that avoids an arbitrary and capricious infliction of the death penalty. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980). The statute must provide clear and objective standards so that there is some way to distinguish a case in which the death penalty is appropriate from those eases in which it is not. Id. at 427, 100 S.Ct. at 1764. The state must articulate guidelines that channel and limit the sentencer’s discretion in imposing the death penalty. Maynard v. Cartwright, 486 U.S. 356, 362-64, 108 S.Ct. 1853, 1857-59, 100 L.Ed.2d 372 (1988). Thus, a statutory aggravating circumstance requiring that the murder involve “depravity of mind” without further definition of the phrase violates the Eighth Amendment because it does not sufficiently limit the pool of persons convicted of murder who would be eligible for the death penalty. Id. Notwithstanding the foregoing, “some kind of torture or serious physical abuse is [a sufficient] limiting construction” to save an aggravating circumstance instruction. Id. Missouri courts have found a “depravity of mind” aggravating circumstance is not too vague to provide adequate guidance to the sentencer when, clear and objective standards exist to define what type of murders constitute killings committed with “depravity of mind.” State v. Preston, 673 S.W.2d 1, 11 (Mo. banc) (listing factors that constitute “depravity of mind”), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984). Battle attempts to distinguish his case because even" } ]

[ { "docid": "2450445", "title": "", "text": "S.W.2d at 489-90, in which Missouri Supreme Court followed Godfrey and Maynard in explicitly narrowing depravity of mind aggravating circumstance). These findings amount to a limiting construction of the depravity-of-mind aggravating circumstance. See Smith v. Armontrout, 888 F.2d 530, 538 (8th Cir.1989) (citing Maynard, 486 U.S. at 365, 108 S.Ct. 1853). In Mercer v. Armontrout, 864 F.2d 1429, 1435 (8th Cir.1988), a case in which the Missouri Supreme Court made similar findings of fact effecting a limiting construction, a panel of this Court held the depravity-of-mind instruction was not unconstitutionally vague. Since deciding Mercer, this Court repeatedly has found the Missouri depravity-of-mind instruction, when narrowly construed, consistent with the Eighth Amendment. See, e.g., LaRette v. Delo, 44 F.3d 681, 686-87 (8th Cir.), cert. denied, 516 U.S. 894, 116 S.Ct. 246, 133 L.Ed.2d 172 (1995); Murray v. Delo, 34 F.3d 1367, 1382-83 (8th Cir.1994), cert. denied, 515 U.S. 1136, 115 S.Ct. 2567, 132 L.Ed.2d 819 (1995); Battle, 19 F.3d at 1562; Smith, 888 F.2d at 537-38. Cf. Newlon v. Armontrout, 885 F.2d 1328, 1333-35 (8th Cir.1989) (finding depravity-of-mind instruction was not capable of objective determination by the jury and Missouri Supreme Court did not provide limiting construction sufficient to satisfy Eighth Amendment), cert. denied, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990). Once again we conclude the depravity-of-mind aggravating circumstance, as here limited by the Missouri Supreme Court, does not violate the Eighth Amendment. Even were we to determine that the depravity-of-mind instruction was unconstitutionally vague, the two remaining aggravating circumstances found by the jury would suffice to sustain Mallett’s death sentence. In addition to concluding Mallett’s actions involved depravity of mind, the jury found that the murder was committed against a peace officer whilé engaged in the performance of his duties and that Mallett had escaped the lawful custody of a peace officer at the time of the murder. “[U]nder Missouri law a death sentence need not be vacated if only one of several aggravating circumstances is later found to be deficient.” Harper v. Grammer, 895 F.2d 473, 480 (8th Cir.1990) (citing Mercer, 864 F.2d at 1435-36 n." }, { "docid": "23206682", "title": "", "text": "for which a death sentence is appropriate and the majority of murders for which it is not. See Wade v. Calderon, 29 F.3d 1312, 1319 (9th Cir.1994). When a jury is given an aggravating-circumstance instruction that would support the imposition of the death penalty, that instruction “must genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder.” Zant v. Stephens, 462 U.S. 862, 877, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983); see also Spaziano v. Florida, 468 U.S. 447, 460, 104 S.Ct. 3154, 82 L.Ed.2d 340 (1984) (“If a State has determined that death should be an available penalty for certain crimes, then it must administer that penalty in a way that can rationally distinguish between those individuals for whom death is an appropriate sanction and those for whom it is not.”). In Godfrey v. Georgia, the Supreme Court held unconstitutional an aggravating-circumstance instruction that permitted a jury to impose the death penalty if it found that the murder “ ‘was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.’ ” 446 U.S. at 428-29, 100 S.Ct. 1759 (quoting state statute) (emphasis added). The instruction in Godfrey, unconstrained by a narrowing construction, resulted in “stan-dardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury.” Id. at 429, 100 S.Ct. 1759. See also Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (holding unconstitutionally vague, under the reasoning of Godfrey, an aggravating-circumstances instruction directing jurors to determine whether the murder was “especially heinous, atrocious, and cruel”). Applying Godfrey, we held in Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.1989), vacated on other grounds sub nom. Angelone v. Deutscher, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991), that the “depravity of mind” phrase in the Nevada jury instruction was unconstitutional. We held that the torture and mutilation parts of the instruction were “sufficiently clear" }, { "docid": "13324600", "title": "", "text": "534, 543 (Mo. banc), vacated and remanded, 494 U.S. 1075, 110 S.Ct. 1800, 108 L.Ed.2d 931 (1990), reaff'd, 790 S.W.2d 243 (1990) (Mo. banc), cert. denied, 498 U.S. 973, 111 S.Ct. 443, 112 L.Ed.2d 426 (1990). Our circuit has held that the Missouri instructions, in essence the same instructions given in this case, do not require that the jury render a verdict of death as punishment if it finds the mitigating circumstances outweigh the aggravating circumstances. Smith, 888 F.2d at 545. Battle has failed to show that there is a reasonable likelihood that the jury misconstrued the instructions as to make the sentencing decision improper. The jury was not required to impose the death penalty, and the Missouri instructions did not lead the jury to the inescapable conclusion that it must unanimously agree that there were mitigating circumstances before it could fix life in prison as Battle’s punishment. We conclude the instructions were not constitutionally infirm. C. Battle’s final argument regarding instructional error is that the sole aggravating circumstance submitted at the sentencing phase, whether the murder involved “torture or depravity of mind and that as a result thereof was outrageously or wantonly vile, horrible or inhuman,” was unconstitutionally vague, in violation of the Eighth and Fourteenth Amendments. In returning its recommendation of death as the punishment in Battle’s case, the jury specifically stated that it found beyond a reasonable doubt “the torture and depravity of mind that as a result thereof [the murder] was outrageously wanton, vile, horrible and inhuman.” The district court rejected Battle’s claim for habeas relief on this issue, and we affirm. A state has a constitutional responsibility to tailor and apply its capital punishment law in a manner that avoids an arbitrary and capricious infliction of the death penalty. Godfrey v. Georgia, 446 U.S. 420, 428, 100 S.Ct. 1759, 1764, 64 L.Ed.2d 398 (1980). The statute must provide clear and objective standards so that there is some way to distinguish a case in which the death penalty is appropriate from those eases in which it is not. Id. at 427, 100 S.Ct. at 1764. The" }, { "docid": "16219549", "title": "", "text": "from testify ing in a judicial proceeding.” Mo.Rev.Stat. § 565.012.2(7) & (12). The jury found only the first statutory aggravating circumstance as to Nash’s murder, while finding both statutory aggravating circumstances as to Bailey’s murder. Mathenia, relying on Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality opinion), contends that the statutory aggravating circumstance of “outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind” as applied, is so vague as to violate the Eighth Amendment. See also Stringer v. Black, — U.S.-, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (petitioner not foreclosed from relying on Maynard even though his death sentence became final before that case). If Missouri wishes to authorize capital punishment “it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.” Godfrey, 446 U.S. at 428, 100 S.Ct. at 1764. See also Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam). The aggravating circumstance at issue risks the arbitrary and capricious infliction of the death penalty because, “[a]ll murder, after all, is horrible, vile, inhuman, and so forth.” Smith v. Armontrout, 888 F.2d 530, 538 (8th Cir. 1989). Consequently, sentencing pursuant to such an aggravating circumstance provides no means to distinguish those that receive the death penalty from those who do not. In order to meet its Eighth Amendment obligations, Missouri must “channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ” Godfrey, 446 U.S. at 428, 100 S.Ct. at 1764-1765. The Missouri Supreme Court responded to Godfrey as follows: this Court, while not expressly adopting a precise definition, has noted the following factors to be considered in finding “depravity of mind”: mental state of defendant, infliction" }, { "docid": "23206683", "title": "", "text": "if it found that the murder “ ‘was outrageously or wantonly vile, horrible or inhuman in that it involved torture, depravity of mind, or an aggravated battery to the victim.’ ” 446 U.S. at 428-29, 100 S.Ct. 1759 (quoting state statute) (emphasis added). The instruction in Godfrey, unconstrained by a narrowing construction, resulted in “stan-dardless and unchanneled imposition of death sentences in the uncontrolled discretion of a basically uninstructed jury.” Id. at 429, 100 S.Ct. 1759. See also Maynard v. Cartwright, 486 U.S. 356, 363-64, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (holding unconstitutionally vague, under the reasoning of Godfrey, an aggravating-circumstances instruction directing jurors to determine whether the murder was “especially heinous, atrocious, and cruel”). Applying Godfrey, we held in Deutscher v. Whitley, 884 F.2d 1152 (9th Cir.1989), vacated on other grounds sub nom. Angelone v. Deutscher, 500 U.S. 901, 111 S.Ct. 1678, 114 L.Ed.2d 73 (1991), that the “depravity of mind” phrase in the Nevada jury instruction was unconstitutional. We held that the torture and mutilation parts of the instruction were “sufficiently clear and objective to satisfy the requirements of Godfrey,” but held that the depravity of mind part of the instruction was unconstitutionally vague. There is nothing in the definition of depravity of mind that restrains arbitrary imposition of the death penalty. The depravity instruction in this case ... is no more capable of channeling discretion than the ‘especially heinous, atrocious, or cruel’ instruction rejected in Maynard or the ‘outrageously or wantonly vile, horrible or inhuman’ instruction in Godfrey. Id. at 1162 (citation omitted); see also McKenna v. McDaniel, 65 F.3d 1483, 1489 (9th Cir.1995) (holding unconstitutionally vague a similar Nevada depravity of mind instruction). Our decision in Deutscher was rendered on August 31,1989. The Nevada Supreme Court decided Valerio’s direct appeal from his conviction and sentence six days later, on September 6, 1989. It said nothing about Godfrey and Deutscher, and nothing about the constitutionality of the instruction. The Nevada Supreme Court responded to Godfrey and Deutscher a year later, in Robins v. State, 106 Nev. 611, 798 P.2d 558 (Nev.1990), by providing a narrowing construction" }, { "docid": "8720846", "title": "", "text": "— U.S. -, 112 S.Ct. 2114, 119 L.Ed.2d 326 (1992), and Stringer v. Black, 503 U.S. 222, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992). However, those eases dealt with the role of a reviewing appellate court in so-called “weighing” States, where the jury must weigh the statutory aggravating circumstances against any mitigating circumstances in deciding whether to impose or recommend the death penalty. Missouri is not a weighing State. Under Missouri law, once the jury finds an aggravating circumstance, it is free to consider all the evidence in deciding whether to recommend the death penalty. See LaRette v. Delo, 44 F.3d 681, 687 n. 4 (8th Cir.1995). Under this type of capital sentencing procedure, “the finding of an aggravating circumstance does not play any role in guiding the sentencing body in the exercise of its discretion, apart from its function of narrowing the class of persons convicted of murder who are eligible for the death penalty.” Zant v. Stephens, 462 U.S. 862, 874, 103 S.Ct. 2733, 2741, 77 L.Ed.2d 235 (1983). As Zant makes clear, when the appellate court in a non-weighing State concludes that the jury was given an improperly vague aggravating circumstance instruction, it must determine (i) whether the jury’s findings “adequately differentiate this case in an objective, evenhanded, and substantively rational way” from other murder cases, 462 U.S. at 879, 103 S.Ct. at 2744, and (ii) whether the faulty instruction either permitted the jury to consider inadmissible evidence, or caused the jury to give inappropriate weight to particular evidence, 462 U.S. at 886-89, 103 S.Ct. at 2747-49. The Missouri Supreme Court performed that function when it reviewed the evidence and concluded that it supported the jury’s depravity-of-mind finding under the Preston standard. See Maynard, 486 U.S. at 362-63, 108 S.Ct. at 1858-59; Mathenia v. Delo, 975 F.2d 444, 449-50 (8th Cir.1992), cert. denied, — U.S.-, 113 S.Ct. 1609, 123 L.Ed.2d 170 (1993). Moreover, the Missouri Supreme Court’s discussion of the evidence, particularly that quoted in note 5 supra, brings this case squarely within the purview of Battle v. Delo, 19 F.3d 1547, 1562 (8th Cir.1994): “[e]ven if" }, { "docid": "2450443", "title": "", "text": "Maynard v. Cartwright, 486 U.S. 356, 362-63, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Battle v. Delo, 19 F.3d 1547, 1562 (8th Cir.1994), cert. denied, 517 U.S. 1235, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996). A limiting construction of the depravity-of-mind aggravating circumstance requiring a finding of “some kind of torture or serious physical abuse” is sufficient to channel and limit the jury’s discretion in imposing the death sentence. Maynard, 486 U.S. at 364-65, 108 S.Ct. 1853; Battle, 19 F.3d at 1562; State v. Griffin, 756 S.W.2d 475, 490 (Mo.1988) (holding murder involving “serious physical abuse” or “callous disregard for human life” justifies finding of depravity of mind), cert. denied, 490 U.S. 1113, 109 S.Ct. 3175, 104 L.Ed.2d 1036 (1989). A state appellate court may provide such a limiting construction. Walton v. Arizona, 497 U.S. 639, 653-54, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); Sloan, 54 F.3d at 1384-85 (“A state appellate court may cure an unconstitutionally vague instruction ... by establishing and then later applying a valid limiting construction.”). In the present case, the Missouri Supreme Court, on direct appeal, found: The evidence that defendant repeatedly beat Trooper Froemsdorf across the face with his still handcuffed left hand, that defendant temporarily incapacitated the trooper by firing a shot into the trooper’s bulletproof vest, and that defendant took advantage of this temporary incapacity by pumping- not one, but two, .357 magnum slugs through the helpless trooper’s neck, provided justification for the jury’s finding that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind. State v. Mallett, 732 S.W.2d at 542. Again, on appeal of Mallett’s Rule 27.26 post-conviction claim, the Missouri Supreme Court revisited the circumstances of the murder and, addressing Mallett’s argument that the depravity-of-mind aggravating circumstance was unconstitutionally vague, found “[t]he evidence indicated the victim had been subjected to serious physical abuse and that mov-ant’s actions were in callous disregard for the sanctity of human life.” Mallett v. State, 769 S.W.2d at 83 (citing Griffin, 756" }, { "docid": "16219551", "title": "", "text": "of physical or psychological torture upon the victim as when victim has a substantial period of time before death to anticipate and reflect upon it; brutality of defendant’s conduct; mutilation of the body after death; absence of any substantive motive; absence of defendant’s remorse and the nature of the crime. State v. Preston, 673 S.W.2d 1, 11 (Mo. banc), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984). See also State v. Smith, 756 S.W.2d 493 (Mo. banc 1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989). Here, the court simply instructed the jury to determine “[wjhether the murder of [Nash and Bailey] was outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind.” The jury was equally terse, declaring that they had found the subject aggravating circumstance as follows: “outrageously, wantonly vile, horrible, inhuman, involved torture, depravity of mind.” Thus, the question is whether the Missouri Supreme Court cured “the unfettered discretion of the jury” on direct appeal. Maynard, 486 U.S. at 364, 108 S.Ct. at 1859. We inquire further, “because a state supreme court may salvage a facially-vague statute by construing it to provide the sentencing body with objective criteria for applying the statute.” Moore v. Clarke, 904 F.2d 1226, 1229 (8th Cir.1990), reh’g denied, 951 F.2d 895 (8th Cir.1991), cert. denied, — U.S. -, 112 S.Ct. 1995, 118 L.Ed.2d 591 (1992). See also Mercer v. Armontrout, 643 F.Supp. 1021, 1024 (W.D.Mo.1986) (“the absence of legislative or court-imposed standards to govern the jury in weighing aggravating circumstances does not render the sentencing statute invalid if applied in a constitutional fashion”), aff'd, 844 F.2d 582 (8th Cir.), cert. denied, 488 U.S. 900, 109 S.Ct. 249, 102 L.Ed.2d 238 (1988). On the facts of this case, the Missouri Supreme Court held: There is no doubt that appellant’s savage beating of Daisy Nash supported a finding of the first circumstance as did appellant’s “infliction of * * * psychological torture upon [Louanna Bailey] * * * when [she had] a substantial period of time before death to anticipate" }, { "docid": "11567429", "title": "", "text": "that state law define with reasonable specificity the circumstances under which the penalty of death may be imposed. Otherwise, the penalty may be carried out freakishly or capriciously, in a completely unpredictable fashion. If the aggravating circumstance involved here were a simple reference to murders “outrageously or wantonly vile, horrible or inhuman in that [they] involved ... depravity of mind,” petitioner might have a point. A similar aggravating circumstance was held invalid in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), on the ground that the murder committed there was not materially more depraved than murder in general. All murder, after all, is horrible, vile, inhuman, and so forth. But here the verdict of the jury was not limited to those general terms. It found specifically that the murder involved “torture,” a concept of more definite content, and even detailed the evidence that supported the finding. This amounts to a limiting construction of the statute, or to an application of its words sufficiently constrained by a definite standard to escape condemnation under the Eighth Amendment. See Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 1859-60, 100 L.Ed.2d 372 (1988), stating that “some kind of torture or serious physical abuse is [a sufficient] limiting construction” to save a similar aggravating circumstance. See also Mercer v. Armontrout, 864 F.2d 1429, 1435 (8th Cir.1988), stay denied, — U.S. -, 109 S.Ct. 773, 102 L.Ed.2d 766 (1989), upholding Mo.Rev.Stat. § 565.012.2(7). The possibility remains that, however valid the “torture” limiting construction may be as a matter of law, the evidence introduced by the State was legally insufficient to prove it. Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), holds that due process forbids a criminal conviction unless the evidence before the jury was sufficient to enable rational jurors to find every element of the offense beyond a reasonable doubt. At stake here is not the conviction, but the punishment. But in capital cases punishment is determined in a formal trial process in which certain predicate facts must be proved by the State beyond" }, { "docid": "8720874", "title": "", "text": "the trial the jury received a single instruction on aggravating circumstances. Instruction No. 4B stated: In determining the punishment to be assessed against the defendant for the murder of Barbara Ann Roam, you must first unanimously determine whether the following aggravating circumstance exists: Whether the murder of Barbara Ann Roam involved torture and or depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible, or inhuman. (Emphasis added.) In fixing punishment at death, the jury found the following aggravating circumstance beyond a reasonable doubt: “the murder of Barbara Ann Roam involved depravity of mind and that as a result thereof it was outrageously or wantonly vile, horrible, or inhuman.” (Emphasis added.) This finding was handwritten and signed by the jury foreman on the verdict form, as required by Missouri law. The jury clearly found the existence of “depravity of mind” and made no finding of “torture” despite being given the opportunity to do so. The Missouri Supreme Court itself has rejected as inadequate this bare instruction on “depravity of mind.” In State v. Preston, 673 S.W.2d 1, 10-11 (Mo.), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984), it stated that “[t]he danger of wafting ‘depravity of mind’ without proper tethers is manifest: that circumstance could be utilized as a ‘catchall’ for murders not falling into any other statutory aggravating circumstances,” citing Godfrey v. Georgia, 446 U.S. 420, 429, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398 (1980). The supreme court noted “the mandate of Godfrey to establish ‘clear and objective standards’ as to what types of murders constitute ‘depravity of mind’ ” in order to prevent arbitrary or capricious infliction of the death penalty. 673 S.W.2d at 10-11. Despite this acknowledgement of the need to further define “depravity of mind,” the jurors at Fel-trop’s trial in 1988 were never given any narrowing construction to channel their discretion in determining Feltrop’s sentence. The majority holds that the defective “depravity of mind” instruction was “cured” in the first instance by the trial judge in his role as “final sentencer” and, second, by the" }, { "docid": "2450442", "title": "", "text": "Mallett’s ve-nire ultimately was drawn. We therefore conclude the change of venue from Perry County to Schuyler County was consistent with the Sixth Amendment. D. We turn now to the question whether Mal-lett’s constitutional rights were violated when the jury considered “depravity of mind”-as an aggravating circumstance in imposing the death penalty. The trial court instructed the jury that it could find an aggravating circumstance if “the murder of James Froemsdorf involved depravity of mind, and that as a result thereof, it was outrageously or wantonly vile, horrible or ... inhuman.” Trial Tr. at 2772-73. According to Mallett, the trial court’s depravity-of-mind instruction is unconstitutionally vague in violation of the Eighth Amendment as incorporated against the states by the Fourteenth Amendment. We disagree. The Eighth Amendment requires that state law define with reasonable specificity the circumstances in which the death penalty is to be imposed. A state must articulate guidelines to provide a jury principled means to distinguish a case in which the death penalty is appropriate from those cases in which it is not. Maynard v. Cartwright, 486 U.S. 356, 362-63, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); Godfrey v. Georgia, 446 U.S. 420, 427-28, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980); Battle v. Delo, 19 F.3d 1547, 1562 (8th Cir.1994), cert. denied, 517 U.S. 1235, 116 S.Ct. 1881, 135 L.Ed.2d 176 (1996). A limiting construction of the depravity-of-mind aggravating circumstance requiring a finding of “some kind of torture or serious physical abuse” is sufficient to channel and limit the jury’s discretion in imposing the death sentence. Maynard, 486 U.S. at 364-65, 108 S.Ct. 1853; Battle, 19 F.3d at 1562; State v. Griffin, 756 S.W.2d 475, 490 (Mo.1988) (holding murder involving “serious physical abuse” or “callous disregard for human life” justifies finding of depravity of mind), cert. denied, 490 U.S. 1113, 109 S.Ct. 3175, 104 L.Ed.2d 1036 (1989). A state appellate court may provide such a limiting construction. Walton v. Arizona, 497 U.S. 639, 653-54, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990); Sloan, 54 F.3d at 1384-85 (“A state appellate court may cure an unconstitutionally vague instruction ... by" }, { "docid": "16219548", "title": "", "text": "brother, testified as to Mathenia’s childhood. Dr. Gary Bassett, a psychiatrist at the Farmington State Hospital, testified that Mathenia is mildly mentally retarded. Finally, Nina Hamilton, Mathenia’s grade school teacher, testified as to her observations of Mathenia at that time. Still, Mathenia maintains that defense counsel should have presented the additional testimony of Reverend Gary Brinkley, Dorothy Stevens and Harold Mathenia. The district court concluded that these additional mitigation witnesses would have been cumulative and that defense counsel’s performance in failing to present this testimony was not deficient. We agree. . B. Statutory Aggravating Circumstances At the penalty phase, the trial court instructed the jury on statutory aggravating circumstances. The court instructed the jury that it must find unanimously and beyond a reasonable doubt at least one of the following: that “the murder of [Nash and Bailey] was outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind” and that “the murder of [Nash and Bailey] was committed by the defendant for the purpose of preventing [Nash and Bailey] from testify ing in a judicial proceeding.” Mo.Rev.Stat. § 565.012.2(7) & (12). The jury found only the first statutory aggravating circumstance as to Nash’s murder, while finding both statutory aggravating circumstances as to Bailey’s murder. Mathenia, relying on Maynard v. Cartwright, 486 U.S. 356, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) and Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (plurality opinion), contends that the statutory aggravating circumstance of “outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind” as applied, is so vague as to violate the Eighth Amendment. See also Stringer v. Black, — U.S.-, 112 S.Ct. 1130, 117 L.Ed.2d 367 (1992) (petitioner not foreclosed from relying on Maynard even though his death sentence became final before that case). If Missouri wishes to authorize capital punishment “it has a constitutional responsibility to tailor and apply its law in a manner that avoids the arbitrary and capricious infliction of the death penalty.” Godfrey, 446 U.S. at 428, 100 S.Ct. at 1764. See also" }, { "docid": "2684577", "title": "", "text": "will now proceed to rule on the merits of those challenges in the petition. III. Constitutionality of Missouri Death Penalty Statute Petitioner’s first ground for habeas relief is an allegation that the statutory aggravating circumstance upholding his sentence is unconstitutionally vague in this case because the open-ended construction by the state court allows a jury to impose the death penalty in an arbitrary and capricious manner and fails to narrow the class of people eligible for the death penalty. For the following reasons, the Court finds this challenge to be without merit. To begin with, since the United States Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), claims of vagueness directed at aggravating circumstances defined in capital punishment statutes are analyzed under the Eighth Amendment and, characteristically, such challenges are upheld where the challenged provision fails adequately to inform juries what they must find to impose the death penalty and, as a result, leaves them and appellate courts with open-ended discretion as to what constitutes an aggravating circumstance. See, e.g. Godfrey v. Georgia, 446 U.S. 420, 428-429, 100 S.Ct. 1759, 1764-1765, 64 L.Ed.2d 398 (1980). Petitioner challenges the law applicable at the time of petitioner’s trial which was contained in Mo.Rev.Stat. § 565.012.2(7) (now repealed) which allowed a jury to assess the death penalty if: “The offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind.” However, the United States Supreme Court has indicated that statutes such as this one, in which the phrase “[t]he offense was outrageously or wantonly vile, horrible or inhuman” is limited by the requirement that the offense involve “torture,” is a sufficient restraint on the arbitrary and capricious infliction of the death penalty in that a finding of torture sufficiently distinguishes those instances where the death penalty is warranted from those instances where it is not. See Maynard v. Cartwright, — U.S.-, 108 S.Ct. 1853, 1859, 100 L.Ed.2d 372 (1988), Godfrey v. Georgia, 446 U.S. 420, 430, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398 (1980). In this particular" }, { "docid": "16219550", "title": "", "text": "Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) (plurality opinion); Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972) (per curiam). The aggravating circumstance at issue risks the arbitrary and capricious infliction of the death penalty because, “[a]ll murder, after all, is horrible, vile, inhuman, and so forth.” Smith v. Armontrout, 888 F.2d 530, 538 (8th Cir. 1989). Consequently, sentencing pursuant to such an aggravating circumstance provides no means to distinguish those that receive the death penalty from those who do not. In order to meet its Eighth Amendment obligations, Missouri must “channel the sentencer’s discretion by ‘clear and objective standards’ that provide ‘specific and detailed guidance’ and that ‘make rationally reviewable the process for imposing a sentence of death.’ ” Godfrey, 446 U.S. at 428, 100 S.Ct. at 1764-1765. The Missouri Supreme Court responded to Godfrey as follows: this Court, while not expressly adopting a precise definition, has noted the following factors to be considered in finding “depravity of mind”: mental state of defendant, infliction of physical or psychological torture upon the victim as when victim has a substantial period of time before death to anticipate and reflect upon it; brutality of defendant’s conduct; mutilation of the body after death; absence of any substantive motive; absence of defendant’s remorse and the nature of the crime. State v. Preston, 673 S.W.2d 1, 11 (Mo. banc), cert. denied, 469 U.S. 893, 105 S.Ct. 269, 83 L.Ed.2d 205 (1984). See also State v. Smith, 756 S.W.2d 493 (Mo. banc 1988), cert. denied, 488 U.S. 1019, 109 S.Ct. 823, 102 L.Ed.2d 812 (1989). Here, the court simply instructed the jury to determine “[wjhether the murder of [Nash and Bailey] was outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind.” The jury was equally terse, declaring that they had found the subject aggravating circumstance as follows: “outrageously, wantonly vile, horrible, inhuman, involved torture, depravity of mind.” Thus, the question is whether the Missouri Supreme Court cured “the unfettered discretion of the jury” on direct appeal. Maynard, 486 U.S." }, { "docid": "2450444", "title": "", "text": "establishing and then later applying a valid limiting construction.”). In the present case, the Missouri Supreme Court, on direct appeal, found: The evidence that defendant repeatedly beat Trooper Froemsdorf across the face with his still handcuffed left hand, that defendant temporarily incapacitated the trooper by firing a shot into the trooper’s bulletproof vest, and that defendant took advantage of this temporary incapacity by pumping- not one, but two, .357 magnum slugs through the helpless trooper’s neck, provided justification for the jury’s finding that the murder was outrageously or wantonly vile, horrible, or inhuman in that it involved depravity of mind. State v. Mallett, 732 S.W.2d at 542. Again, on appeal of Mallett’s Rule 27.26 post-conviction claim, the Missouri Supreme Court revisited the circumstances of the murder and, addressing Mallett’s argument that the depravity-of-mind aggravating circumstance was unconstitutionally vague, found “[t]he evidence indicated the victim had been subjected to serious physical abuse and that mov-ant’s actions were in callous disregard for the sanctity of human life.” Mallett v. State, 769 S.W.2d at 83 (citing Griffin, 756 S.W.2d at 489-90, in which Missouri Supreme Court followed Godfrey and Maynard in explicitly narrowing depravity of mind aggravating circumstance). These findings amount to a limiting construction of the depravity-of-mind aggravating circumstance. See Smith v. Armontrout, 888 F.2d 530, 538 (8th Cir.1989) (citing Maynard, 486 U.S. at 365, 108 S.Ct. 1853). In Mercer v. Armontrout, 864 F.2d 1429, 1435 (8th Cir.1988), a case in which the Missouri Supreme Court made similar findings of fact effecting a limiting construction, a panel of this Court held the depravity-of-mind instruction was not unconstitutionally vague. Since deciding Mercer, this Court repeatedly has found the Missouri depravity-of-mind instruction, when narrowly construed, consistent with the Eighth Amendment. See, e.g., LaRette v. Delo, 44 F.3d 681, 686-87 (8th Cir.), cert. denied, 516 U.S. 894, 116 S.Ct. 246, 133 L.Ed.2d 172 (1995); Murray v. Delo, 34 F.3d 1367, 1382-83 (8th Cir.1994), cert. denied, 515 U.S. 1136, 115 S.Ct. 2567, 132 L.Ed.2d 819 (1995); Battle, 19 F.3d at 1562; Smith, 888 F.2d at 537-38. Cf. Newlon v. Armontrout, 885 F.2d 1328, 1333-35 (8th Cir.1989)" }, { "docid": "2684578", "title": "", "text": "aggravating circumstance. See, e.g. Godfrey v. Georgia, 446 U.S. 420, 428-429, 100 S.Ct. 1759, 1764-1765, 64 L.Ed.2d 398 (1980). Petitioner challenges the law applicable at the time of petitioner’s trial which was contained in Mo.Rev.Stat. § 565.012.2(7) (now repealed) which allowed a jury to assess the death penalty if: “The offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture, or depravity of mind.” However, the United States Supreme Court has indicated that statutes such as this one, in which the phrase “[t]he offense was outrageously or wantonly vile, horrible or inhuman” is limited by the requirement that the offense involve “torture,” is a sufficient restraint on the arbitrary and capricious infliction of the death penalty in that a finding of torture sufficiently distinguishes those instances where the death penalty is warranted from those instances where it is not. See Maynard v. Cartwright, — U.S.-, 108 S.Ct. 1853, 1859, 100 L.Ed.2d 372 (1988), Godfrey v. Georgia, 446 U.S. 420, 430, 100 S.Ct. 1759, 1765, 64 L.Ed.2d 398 (1980). In this particular ease, there was ample evidence from which a jury could conclude that the “offense was outrageously or wantonly vile, horrible or inhuman in that it involved torture.” In dealing with this issue on direct appeal, the Missouri Supreme Court noted: “In Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), the United States Supreme Court upheld the facial validity of a provision substantially indistinguishable from § 565.012.2(7) against Eighth and Fourteenth Amendment challenges. As no authority is advanced for a different interpretation of Missouri’s Constitution, we see no reason to reconsider our rejection of defendant’s claim in State v. Blair, 638 S.W.2d 739, 758 (Mo. banc 1982), and State v. Newlon, 627 S.W.2d 606, 621 (Mo. banc 1982), cert. denied, 459 U.S. 884, 103 S.Ct. 185, 74 L.Ed.2d 149 (1982). In addition [,], it has been held in Godfrey v. Georgia, 446 U.S. 420, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980), that capital murder statutes must be construed in a manner that the nature of a crime and all of the" }, { "docid": "8732066", "title": "", "text": "promptly issued a curative instruction and the prosecution made no attempt to capitalize on the erroneous information. Accordingly, we cannot say that admission of the Prisoner Data Sheet was so prejudicial that it violated Sidebottom’s due process rights or that counsel was constitutionally ineffective for failing to object or to request a mistrial. E. Sidebottom next argues that counsel was ineffective for failing to object to the aggravating circumstance instruction that required the jury to determine “whether the murder of May Sidebottom involved depravity of mind and as a result thereof it was outrageously or wantonly vile, horrible or inhuman.” Sidebottom contends that this instruction is unconstitutionally vague and overbroad, and that counsel’s failure to object was unreasonable. We have held that “a statutory aggravating circumstance requiring that the murder involve ‘depravity of mind’ without further definition of the phrase violates the Eighth Amendment because it does not sufficiently limit the pool of persons convicted of murder who would be eligible for the death penalty.” Battle v. Delo, 19 F.3d 1547, 1562 (8th Cir.1994); see also Mathenia v. Delo, 975 F.2d 444, 449 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1609, 123 L.Ed.2d 170 (1993); Newlon v. Armontrout, 885 F.2d 1328, 1334 (8th Cir.1989), cert. denied, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990); Smith v. Armontrout, 888 F.2d 530, 538 (8th Cir.1989). Nevertheless, “ ‘some kind of torture or serious physical abuse is a sufficient limiting construction’ to save an aggravating circumstance instruction.” Battle, 19 F.3d at 1562 (quoting Maynard v. Cartwright, 486 U.S. 356, 362-64, 108 S.Ct. 1853, 1858-59, 100 L.Ed.2d 372 (1988)). The problem in this case, however, is that the instruction given to the jury did not include the limiting elements of torture or serious physical abuse, nor did the jury make a finding that either of those elements existed in reaching its verdict at the penalty phase of the trial. Thus, because of the absence of a clear, limiting directive, the “depravity of mind” instruction did not sufficiently channel the sentencer’s discretion. Newlon, 885 F.2d at 1334; Smith, 888 F.2d at" }, { "docid": "3986065", "title": "", "text": "because, as the Missouri Supreme Court found, his trial attorney’s failure to introduce the letters as evidence at trial was not deficient performance, but sound trial strategy. See Ramsey, 864 S.W.2d at 339. Indeed, at the new trial hearing, Billy testified his trial testimony was truthful and the letters were fabricated. Second, Ramsey attacks the Missouri Supreme Court’s proportionality review of his death sentence on direct appeal under Mo.Rev.Stat. § 565.035. Contrary to Ramsey’s assertions, Missouri’s proportionality review does not violate the Eighth Amendment, due process, or equal protection of the laws. See Sweet v. Delo, 125 F.3d 1144, 1159 (8th Cir.1997), cert. denied, — U.S. -, 118 S.Ct. 1197, 140 L.Ed.2d 326 (1998). The Missouri Supreme Court concluded Ramsey’s “sentence is not disproportionate,” Ramsey, 864 S.W.2d at 327, and we see no basis for looking behind that conclusion, see Sweet, 125 F.3d at 1159. Third, Ramsey contends his death sentence is based on an invalid aggravating circumstance: that the homicide was “outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind.” According to Ramsey, this aggravating circumstance is vague or overbroad because it does not define “torture or depravity of mind.” “A finding of torture is sufficient to properly narrow the class of persons eligible for the death penalty.” LaRette v. Delo, 44 F.3d 681, 686 (8th Cir.1995). As for depravity of mind, the Missouri Supreme Court has judicially defined and limited the term. See Ramsey, 864 S.W.2d at 328. In Ramsey’s case, the court gave the term a limiting construction by instructing the jury it could find depravity if it found Ramsey bound Betty or planned to kill more than one person, and had a callous disregard for human life. The limiting construction gave adequate guidance to the sentencer. See Battle v. Delo, 19 F.3d 1547, 1562 (8th Cir.1994). Even if the instruction were unconstitutionally vague, the jury’s penalty phase verdict was reliable because the jury found several other unchallenged aggravating circumstances that support Ramsey’s death sentence. See Sloan v. Delo, 54 F.3d 1371, 1385-86 (8th Cir.1995) (in nonweighing state like Missouri," }, { "docid": "3684154", "title": "", "text": "512 U.S. at 973, 114 S.Ct. 2630. The delineation of an aggravator is a legislative judgment, see Tuilaepa, 512 U.S. at 974, 114 S.Ct. 2630, and judicial review of such judgments is “quite deferential.” Id. at 973, 114 S.Ct. 2630. This does not mean, of course, that a reviewing court’s role is reduced to that of a rubber stamp. The Supreme Court has found that factors similar to the “especially heinous, cruel, or depraved” factor can present vagueness concerns. See, e.g., Maynard v. Cartwright, 486 U.S. 356, 363-65, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988) (analyzing Oklahoma’s “especially heinous, atrocious or cruel” aggravator); Godfrey v. Georgia, 446 U.S. 420, 428-29, 100 S.Ct. 1759, 64 L.Ed.2d 398 (1980) (evaluating Georgia’s “outrageously or wantonly vile, horrible and inhuman” aggravator). But such concerns can be ameliorated by a narrowing construction. See Maynard, 486 U.S. at 365, 108 S.Ct. 1853; Godfrey, 446 U.S. at 429-32, 100 S.Ct. 1759. Applying this framework, we agree with other courts of appeals that have found the FDPA’s “especially heinous, cruel, or depraved” factor not unconstitutionally vague when coupled with the type of limiting instruction given by the court below. See, e.g., Bourgeois, 423 F.3d at 511; United States v. Chanthadara, 230 F.3d 1237, 1262 (10th Cir.2000); United States v. Paul, 217 F.3d 989, 1001 (8th Cir.2000). This factor avoids facial vagueness by requiring that the offense involve serious physical abuse or torture. See Maynard, 486 U.S. at 364-65, 108 S.Ct. 1853 (approving this narrowing construction). Here, moreover, the district court carefully defined each of the relevant terms—heinous, cruel, depraved, and serious physical abuse—in a manner that was easily understood and that afforded the jurors a eom-monsense core of meaning. See Walton, 497 U.S. at 653, 110 S.Ct. 3047 (deeming such an effort “constitutionally significant”). The narrowing accomplished by the statutory inclusion of the serious physical abuse component, especially when combined with the district court’s thorough instructions, leaves no room to doubt the factor’s constitutionality. Sampson cites a plethora of state court cases in which variants of the “especially heinous, cruel, or depraved” factor have been used. See, e.g.," }, { "docid": "8732067", "title": "", "text": "also Mathenia v. Delo, 975 F.2d 444, 449 (8th Cir.1992), cert. denied, — U.S. -, 113 S.Ct. 1609, 123 L.Ed.2d 170 (1993); Newlon v. Armontrout, 885 F.2d 1328, 1334 (8th Cir.1989), cert. denied, 497 U.S. 1038, 110 S.Ct. 3301, 111 L.Ed.2d 810 (1990); Smith v. Armontrout, 888 F.2d 530, 538 (8th Cir.1989). Nevertheless, “ ‘some kind of torture or serious physical abuse is a sufficient limiting construction’ to save an aggravating circumstance instruction.” Battle, 19 F.3d at 1562 (quoting Maynard v. Cartwright, 486 U.S. 356, 362-64, 108 S.Ct. 1853, 1858-59, 100 L.Ed.2d 372 (1988)). The problem in this case, however, is that the instruction given to the jury did not include the limiting elements of torture or serious physical abuse, nor did the jury make a finding that either of those elements existed in reaching its verdict at the penalty phase of the trial. Thus, because of the absence of a clear, limiting directive, the “depravity of mind” instruction did not sufficiently channel the sentencer’s discretion. Newlon, 885 F.2d at 1334; Smith, 888 F.2d at 538. However, the presence of an invalid aggravating circumstance does not end the inquiry. Under Missouri’s death penalty law, the sen-teneer is required to find only one of certain enumerated aggravating circumstances. Mo.Rev.Stat. § 566.032.1(1) (Supp.1993). In this case, the jury found a second aggravating circumstance, namely, “[that] the defendant was convicted of sexual abuse in the first degree on July 17, 1986.” The Missouri Supreme Court has held that “[w]hen a ‘jury finds two or more aggravating circumstances, “the failure of one circumstance[ ] does not taint the proceedings so as to invalidate the other aggravating circumstance found and the sentence of death thereon.” ’ ” State v. Sidebottom, 781 S.W.2d at 799 (quoting State v. Malone, 694 S.W.2d 723, 728 (Mo.1985) (en banc), cert. denied, 476 U.S. 1164, 106 S.Ct. 2292, 90 L.Ed.2d 733 (1986)). Because Missouri is a non-weighing state, LaRette v. Delo, 44 F.3d 681, 687 n. 4 (8th Cir.1995), the existence in this case of the second aggravating factor also precludes the tainting of the conviction and sentence as a" } ]

[ { "docid": "22539344", "title": "", "text": "respect to alleged violations which have yet to occur the statutory remedy for injunctive relief created by the Amendments. Ill Our conclusion in Part II pretermits any occasion for addressing the question of respondent’s standing as a citizen and voter to maintain this action, for respondent seeks damages only derivatively as stockholder. Therefore, we turn next to the holding of the Court of Appeals that “a private cause of action ... by a stockholder to secure . . . derivative damage relief [is] proper to remedy violation of § 610.” We hold that such relief is not available with regard to a 1972 violation under § 610 itself, but rather is available, if at all, under Delaware law governing corporations. 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 (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 (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 (1975); Calhoon v. Harvey, 379 U. S. 134 (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 (1963); cf. J. I. Case Co. v. Borak, 377 U. S. 426, 434 (1964); Bivens v. Six Unknown Federal Narcotics Agents, 403 U. S. 388, 394-395 (1971); id., at 400" } ]

[ { "docid": "6752838", "title": "", "text": "general rulemaking and investigation. 15 U.S.C. §§ 77ddd(c), (d), (e); 77eee(a), (c); 77ggg; 77sss; 77ttt. The Act contains criminal liability for certain willful violations and misrepresentations and express civil liability for any omission or misstatement in the filing documents. Enforcement of the terms of the indenture is left to the parties. The plaintiffs in this case contend that the Act necessarily allows for enforcement of the indenture in federal court to insure compliance with the Act. First Pennsylvania argues that, because the Act only mandates certain terms of the indenture in order for it to be qualified by the SEC, the remedy is contractual under state law and not one for federal jurisdiction. III. The plaintiffs’ first argument is that the Act expressly creates a federal cause of action. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court set out four factors to aid in determining whether a statute creates an implied federal cause of action. First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” — 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? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? 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? 422 U.S. at 78, 95 S.Ct. at 2088. Since Cort, the Supreme Court has been reluctant to imply private rights of action under the securities laws. Thus, plaintiffs’ argument in favor of an express private right of action is an apparent attempt to escape the perceived strictures of the Cort analysis. The cornerstone of plaintiffs’ first argument in favor of an express federal cause of action is the jurisdictional provision of the Act, section 322," }, { "docid": "10430035", "title": "", "text": "shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.... 20 U.S.C. § 1681(a). It is undisputed that at the time of the sexual harassment and abuse of the plaintiffs the school board was an educational program receiving federal financial assistance. Supreme Court precedent interpreting the scope of Title IX establishes that the statute creates a broad federal protection privately enforceable by beneficiaries of the act. In Cannon v. University of Chicago, 441 U.S. 677, 99 S.Ct. 1946, 60 L.Ed.2d 560 (1979), the Supreme Court held that Title IX is enforceable through an implied right of action by certain classes of private parties. The Court applied the four factors set forth in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087-88, 45 L.Ed.2d 26 (1975), for analyzing whether a private right of action is to be implied under a federal statute: (1) is the plaintiff one of the class for whose especial benefit the statute was enacted? (2) is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? (3) is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? and (4) 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? The Court concluded that notwithstanding Title IX’s failure to expressly authorize a private right of action, a woman who, because of her sex, is denied admission to an education program of an institution which receives federal financial assistance may maintain a federal action for violation of Title IX, since a woman who is discriminated against on the basis of sex is a member of the class for whose especial benefit Title IX was enacted; the legislative history indicates Congress’ intent to create a private cause of action for a person" }, { "docid": "3642872", "title": "", "text": "the relief sought is prohibited by the tenth amendment, 5) the Harpers are estopped from seeking restructuring, and 6) the complaint fails to state a claim against WPCA. 1. Private Right of Action. The Act does not expressly provide for a private right of action. In determining whether to infer a private right of action from a federal statute, the focal point is Congress’ intent when enacting the statute. Thompson v. Thompson, — U.S. -, 108 S.Ct. 513, 518, 98 L.Ed.2d 512 (1988). As a guide to discerning that intent, the Supreme Court set forth four factors to be considered: First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” — that is, does the statute create a federal right in favor of plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? 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? Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975) (citations omitted). Congress entitled Title I of the Act “Assistance to Farm Credit System Borrowers.” In that Title, Congress established broad rights for borrowers and mandatory duties for lenders. The Harpers are borrowers within the farm credit system and, as such, are one of the class for whose especial benefit the statute was enacted. The legislative history supports an implied right of action. Defendants contend that because Congress considered enacting an express right of action and later deleted that section, no right .of action may be implied. Generally this would demonstrate congressional intent to deny a private right of action. Here, however, a close look at the legislative history demonstrates Congress’ intent to provide such a right. On May 6, 1987, Senators Pryor, Cochran, Fowler," }, { "docid": "1453916", "title": "", "text": "under Federal regulatory law.” Id. at 1379. Thus, the Plaintiffs are correct that the lack of a private right of action under the Safety Act does not preclude them acting under a state law cause of action. However, the lack of a private right of action for a violation of the Safety Act’s notification requirements is ■strong evidence that a violation of these requirements does not constitute the predicate act of mail or wire fraud. As explained above, the Plaintiffs' cause of action under the Georgia civil RICO statute fails because Plaintiffs cannot show a violation of the federal mail or wire fraud statutes, not because they could not proceed under a private right of action provided by the Safety Act. . In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26, (1975), the Supreme Court set forth the following four guidelines: 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, 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? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? 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? Id. at 78, 95 S.Ct. at 2088 (internal quotations and citations omitted). . Section 30116 does not involve the notification duties. It provides in pertinent part: (a) If, after a manufacturer or distributor sells a motor vehicle or motor vehicle equipment to a distributor or dealer and before the distributor or dealer sells the vehicle or equipment, it is decided that the vehicle or equipment contains a defect related to motor vehicle safety or does not" }, { "docid": "22912398", "title": "", "text": "of the existence of affirmative rights under Section 504 and the regulations, we now turn to a consideration whether a private cause of action may be implied to vindicate these rights. As the parties have acknowledged, Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26, sets out the four factors relevant to determining whether a private remedy is implicit in a statute not expressly providing one. They are: “First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted,’ (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? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? 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?” (Citations omitted.) Applying the Cort factors here leads to the conclusion that a private cause of action must be implied from Section 504. (1) Plaintiffs of course are among the class specifically benefited by the enactment of the statute. As demonstrated above, Section 504 establishes affirmative private rights. In particular, these rights apply to transportation barriers impeding handicapped individuals. 29 U.S.C. § 701(11). (2) While the 1973 legislative history of Section 504 is bereft of much explanation, the legislative history of the Rehabilitation Act Amendments of 1974 casts light on the original Congressional intent. These amendments, inter alia, redefined the term “handicapped individual” as used in Section 504 and, as clarifying amendments, have cogent significance in construing Section 504. See Red Lion Broadcasting Co., Inc. v. Federal Trade Commission, 395 U.S. 367, 380-381, 89 S.Ct. 1794, 23 L.Ed.2d 371. It is noteworthy that the Senate Report was submitted on November 26, 1974, and the Lau opinion construing Section 601 of the Civil Rights Act" }, { "docid": "6904961", "title": "", "text": "S.Ct. 96, 97, 81 L.Ed. 70 (1936). III. To sustain the district court’s subject matter jurisdiction, Nashoba also argues that 1) following Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), there is an implied cause of action under the Cable Act, 47 U.S.C. § 543(a) (Supp. II 1984), to block impermissible rate regulation by a franchising authority, and 2) under the doctrine of Ex parte Young, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714 (1908), there is a federal cause of action to enjoin state regulation of cable rates because of federal pre-emption. Neither of these theories applies here. A. Contrary to Nashoba, there is no implied right of action in favor of cable companies to enforce the rate regulation provisions of the Cable Act. Cort v. Ash, 422 U.S. at 78, 95 S.Ct. at 2088, set out the factors relevant to determining whether a private remedy is implicit in a statute not expressly providing one: First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” — 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? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? ... 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? [Citations omitted] See also California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1778-79, 68 L.Ed.2d 101 (1981); Cannon v. University of Chicago, 441 U.S. 677, 689-709, 99 S.Ct. 1946, 1952-64, 60 L.Ed.2d 560 (1979). Even if cable companies are intended beneficiaries of the Cable Act, however incidentally, the other three factors are not satisfied. There is no explicit or discerna-ble implicit intent to create a cause of action in favor of cable companies" }, { "docid": "19357544", "title": "", "text": "the award to $1,350 which is equivalent to the Tallaricos’ actual out-of-pocket expenses. II. Discussion A. Private cause of action Logic dictates that we begin with TWA’s cross-appeal in which TWA contends that the ACAA does not provide for a private cause of action. The Act states that “[n]o air carrier may discriminate against any otherwise qualified handicapped individual, by reason of such handicap, in the provision of air transportation.” 49 U.S.C.App. § 1374(c)(1) (Supp. IV 1986). The ACAA does not expressly provide for a cause of action to enable private citizens to seek a remedy for a violation of the Act.. Consequently, we must determine if a private cause of action is implied under the ACAA. Cort v. Ash, 422 U.S. 66 (1975), states that four factors are relevant in making such a determination. First, is the plaintiff ‘one of the class for whose especial benefit the statute was enacted,’ 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? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? 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? Id. at 78 (citations omitted) (emphasis in original). The district court concluded, using the analysis of Cort v. Ash, that the ACAA does imply a private cause of action. The court determined, first, that “Polly, as a handicapped individual, is a member of the class of persons for whose especial benefit the Air Carrier Access Act was enacted.” Tallarico v. Trans World Airlines, Inc., 693 F.Supp. 785, 788 (E.D.Mo.1988). Although the court found “no explicit indication in the legislative history of the Act that Congress intended either to create or to deny implied private rights to enforce the Act,” the court stated that it believed" }, { "docid": "18810976", "title": "", "text": "determination of whether a private right of action can be implied under section 17(a) and whether there is a private right of action under section 10(b) for conduct for which the securities acts provide an express remedy is premised on the interrelatedness of the two acts as well as the distinct nature of each of the acts. Furthermore, we emphasize that congressional intent is the key to both issues. Both issues involve implied rights — the first raises the existence of an implied right of action; the second, the scope of an already established implied right. As will be discussed, the Supreme Court, has made it emphatically clear that no private right of action shall be implied without a finding that Congress intended the implication of such a right. We conclude that this same test must be applied where the issue is the scope of a recognized implied right. II. Implied Bights of Action In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975) the United States Supreme Court held that four factors must be considered in determining whether to imply a private cause of action from a general prohibition contained in a federal statute. First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” — 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? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy? 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? Id. at 78, 95 S.Ct. at 2088 (emphasis original, citations omitted). In subsequént cases, however, the Court has adopted a more stringent standard in which the central inquiry goes to congressional intent. Stating that the four Cort factors are not entitled to equal" }, { "docid": "8990910", "title": "", "text": "fifth cause of action does not state a cognizable claim as a matter of law. Beginning with Cort v. Ash, the Supreme Court outlined the factors to be considered in determining whether a statute implies a private cause of action: (1) Is the plaintiff one of the class for whose “especial benefit” the statute was enacted; that is, does the statute create a federal right in favor of the plaintiff? (2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? (3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? (4) Is the cause of action one traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law? 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Although the four-factor test outlined in Cort remains the starting point for determining whether a cause of action is implied in a statute, subsequent Supreme Court decisions state that “[t]he central inquiry [is] whether Congress intended to create, either expressly or by implication, a private cause of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 61 L.Ed.2d 82 (1979). Relevant to this inquiry is the language of the statute, its legislative history, and the legislative scheme of which the statute is a part. See id. at 571-72, 99 S.Ct. 2479. Navajo Nation’s argument fails based on the third factor for consideration: Whether it is consistent with the underlying pur-' poses of the legislative scheme to imply such a remedy for the plaintiff. It is not consistent with the legislative scheme to create an implied cause of action when an express cause of action already exists in another section of the same statute. See, e.g., id. at 572, 99 S.Ct. 2479. When Congress wished to provide a cause of action, it apparently knew how to do so and would have done so in a section of the statute immediately following. Congress knew how to" }, { "docid": "22601407", "title": "", "text": "for whose especial benefit the statute was enacted/ ” ibid., quoting Texas & Pacific R. Co. v. Rigsby, 241 U. S. 33, 39 (1916), and when there is also in the legislative history no “indication of legislative intent, explicit or implicit, ... to create such a remedy,” 422 U. S., at 78, the remaining two Cort factors cannot by themselves be a basis for implying a right of action. Mr. Justice Marshall, dissenting. In determining whether to imply a private cause of action for damages under a statute that does not expressly authorize such a remedy, this Court has considered four factors: “First, is the plaintiff 'one of the class for whose especial benefit the statute was enacted/ — 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? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? 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?” Cort v. Ash, 422 U. S. 66, 78 (1975) (citations omitted). Applying these factors, I believe respondents are entitled to bring an action against accountants who have allegedly breached duties imposed under § 17 (a) of the Securities Exchange Act of 1934, 15 U. S. C. § 78q (a). Since respondents seek relief on behalf of brokerage firm customers, the first inquiry is whether those customers are the intended beneficiaries of the regulatory scheme. Under § 17 (a), brokers must file such reports “as the [SEC], by rule, prescribes as necessary or appropriate . . . for the protection of investors.” 15 U. S. C. § 78q (a)(1) (emphasis added). Cf. J. I. Case Co. v. Borak, 377 U. S. 426, 432 (1964). Pursuant to this authority, the SEC requires brokers to provide a battery of financial" }, { "docid": "15987692", "title": "", "text": "restructuring prior to proceeding with the sheriffs sale.” Id. The Lenders were enjoined from evicting the Har-pers from their property. Id. The district court also issued an order directing the parties to apply to state court for an order rescinding the sheriff’s sale. On appeal, the Lenders contend the 1987 Act does not provide an implied private right of action. Alternatively, they argue (1) they have not violated the 1987 Act; (2) the actions taken by the district court were prohibited by the Anti-Injunction Act, 28 U.S.C. § 2283 (1982); (3) the district court did not have the authority to command the parties to stipulate in state court to an order rescinding a completed sheriff’s foreclosure sale or to restrain the purchasers from taking possession of the property; and (4) the district court’s findings as to WPCA are clearly erroneous. We decide only that there exists no private right of action and therefore we do not reach the alternative arguments. DISCUSSION I. In Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087-88, 45 L.Ed.2d 26 (1975), the Supreme Court set forth four factors to determine whether Congress intended to imply a private cause of action in a federal statute. First, is the plaintiff one of the class for whose especial benefit the statute was enacted — that is, does the statute create a federal right in favor of plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? 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? Id. at 78, 95 S.Ct. at 2088 (internal quotations and citations omitted) (emphasis in original). Subsequent to Cort, the Court has indicated that the second and third factors are determinative of whether a court should imply a private right" }, { "docid": "8990909", "title": "", "text": "preferences for the adoptive placement of an Indian child as set out in 25 U.S.C. § 1915. Defendants move for dismissal of the fifth cause of action because it does not state a cognizable claim. The ICWA does not recognize a cause of action for a violation of 25 U.S.C. § 1915. The Navajo Nation argues that an implied cause of action exits for violation of placement preferences because it is consistent with the purpose of the ICWA. Section 1914 of the ICWA expressly provides for a private cause of action to invalidate actions of foster care placement or termination of parental rights “upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of [the ICWA].” 25 U.S.C. § 1914. By its terms, § 1914 does not provide for a private cause of action for a violation of § 1915. Section 1915, while setting out the preferences for placement of Indian children, does not expressly permit a private cause of action. Unless the court implies a cause of action, Plaintiffs fifth cause of action does not state a cognizable claim as a matter of law. Beginning with Cort v. Ash, the Supreme Court outlined the factors to be considered in determining whether a statute implies a private cause of action: (1) Is the plaintiff one of the class for whose “especial benefit” the statute was enacted; that is, does the statute create a federal right in favor of the plaintiff? (2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? (3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? (4) Is the cause of action one traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law? 422 U.S. 66, 78, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975). Although the four-factor test outlined in Cort remains the starting point for determining whether a cause of action is implied in a statute, subsequent" }, { "docid": "12134438", "title": "", "text": "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,” [cite omitted] 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? [cite omitted] Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? [cases omitted] And finally, is the cause of action one traditionally relegated to state law, * * * ? Id. at 78, 95 S.Ct. at 2088. The Court held that no private right of action derives from a criminal statute out lining the penalties and violations to which corporations are subject for contravening political action restrictions placed on business entities. Id. at 79, 95 S.Ct. at 2088. While the Court notes that “provision of a criminal penalty does not necessarily preclude implication of a private cause of action for damages,” id., it continues that “[h]ere, there was nothing more than a bare criminal statute, with absolutely no indication that civil enforcement of any kind was available to anyone.” Id. at 79-80, 95 S.Ct. at 2088-2089. Touche Ross, 442 U.S. at 568, 99 S.Ct. at 2485, states that the key issue is legislative intent. The other tests are mostly of value to determine whether legislative intent may have been implied though not stated. Appellants are similarly situated in that the statutes cited, although not criminal in nature as in Cort, like it do not explicitly vest appellants with private causes of action against government officials. Appellants fail to meet any but the first part of the Cort test, an insufficient basis for standing to bring suit against the government. Additionally, appellants neglect to cite any legislative history indicative of congressional intent to accord implicitly these rights. As such, all of appellants’ grievances predicated upon these statutory provisions are specious and frivolous. Appellants’ briefs and oral argument before us were devoid of any effort to make a Cort" }, { "docid": "18303194", "title": "", "text": "the Court is whether violation of the Farm Credit Act, 12 U.S.C. § 2001, et seq., and the regulations promulgated under it gives the Hartmans a private cause of action. As long as the question is not frivolous, the Court has jurisdiction under 28 U.S.C. § 1331 to decide this issue. Bell v. Hood, 327 U.S. 678, 682, 66 S.Ct. 773, 776, 90 L.Ed. 939 (1946). The mere violation of a federal statute does not automatically give rise to a private cause of action. Touche Ross & Co. v. Redington, 442 U.S. 560, 568, 99 S.Ct. 2479, 2485, 61 L.Ed.2d 82 (1979), on remand, 612 F.2d 68 (2nd Cir.1979); Cannon v. Univ. of Chicago, 441 U.S. 677, 688, 99 S.Ct. 1946, 1953, 60 L.Ed.2d 560 (1979). A private remedy must be found in the language of the statute, either expressly or implicitly. There are no words in the Farm Credit Act that directly confer a private remedy for violation of the Act. Therefore, the Court must determine if there is an implied remedy in the statute. The Hartmans assert that regulations that impose fiduciary duties and govern loan policies read together with the statute, imply a private cause of action. The language of the statute, however, must control. Regulations cannot provide the source of an implied remedy for damages. Touche Ross & Co. v. Redington, supra, 442 U.S. at n. 18, 577, 99 S.Ct. at n. 18, 2489. In Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the United States Supreme Court laid out four factors to consider in determining whether a statute impliedly confers a private right of action. These factors are: 1. Is the plaintiff one of the class for whose especial benefit the statute was enacted? 2. Is there any legislative intent — explicit or implicit — to create a remedy? 3. Is a remedy consistent with the underlying purposes of the legislative scheme? 4. 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" }, { "docid": "16292317", "title": "", "text": "of action under Rule 10b-13 was either implied or denied. In determining whether to imply a private remedy from Rule 10b-13, the proper analysis is that set out in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), and utilized recently in Piper v. Chris-Craft Industries, Inc., 430 U.S. 1, 97 S.Ct. 926, 51 L.Ed.2d 124 (1977). In Cort v. Ash, the issue to be resolved was whether a private civil remedy was to be implied from a criminal statute which prohibited corporations from making contributions in connection with a presidential election. The Court stated “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,’ . . . —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? . . . Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? . . . 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?” (emphasis in original, citations omitted) 422 U.S. at 78, 95 S.Ct. at 2088. Application of the Cort v. Ash analysis in this case suggests that a private remedy under Rule 10b-13 should be implied. First, the S.E.C. adopted Rule 10b-13 expressly “for protection of investors,” with “the objective of safeguarding the interests of the persons who have tendered their securities in response to a cash tender offer or exchange offer.” S.E.A. Release No. 8712. Plaintiffs here are investors who tendered their securities in response to defendants’ tender offer and exchange offer, and as such, are clearly “of the class for whose especial benefit the statute was enacted,” 422 U.S. at 78, 95 S.Ct." }, { "docid": "5036662", "title": "", "text": "U.S.C. § 1175 will be discussed first. Clearly the act does not specifically provide for a private damages action and the plaintiff requests that this court hold that such a cause of action is implied in the Act’s provisions. The Supreme Court, in Cort v. Ash, outlined four factors to be considered in determining whether a private cause of action should be implied from a statute: 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,’ — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication in the legislative intent, explicit or implicit, either to create such a remedy or deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? 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? 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975) (citations omitted). Assuming, arguendo, that the plaintiff satisfies the first three prerequisites, the major difficulty appears to be in creating a federal cause of action under the statute where the plaintiff has a remedy via a state law invasion of privacy claim. The right to privacy has traditionally been a matter of state concern and has been provided protection by the District of Columbia common law. See Afro-American Publishing Co. v. Jaffe, 125 U.S.App.D.C. 70, 366 F.2d 649, 653 (1966) (en banc). Other courts have refused to imply a private cause of action based upon federal statutes and regulations where an adequate remedy already existed. See Farmland Industries, Inc. v. Kansas-Nebraska Gas Co., 486 F.2d 315, 318 (8th Cir. 1973); Holloway v. Bristol-Myers Corp., 158 U.S.App.D.C. 207, 485 F.2d 986 999-1000 (1973); Doak v. Claxton, Georgia, 390 F.Supp. 753, 758 (S.D.Ga.1975). The" }, { "docid": "18886981", "title": "", "text": "Title VII specifically authorizes private actions against the EEOC to enforce any provisions of Title VII. The plaintiffs’ argument, in essence, is that a right of action against the EEOC for charging parties should be implied under Title VII to provide a means of enforcing the statutory investigation and conciliation requirements. The standards to be applied in determining whether to imply a cause of action under a federal statute which does not expressly provide for such a right of action have been recently set forth by the Supreme Court in Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26, 36 (1975). Although the question specifically involved in Cort v. Ash was whether a criminal provision of the Federal Election Campaign Act. implied a private remedy as well, the language used and the number and scope of the cases cited by the Court clearly indicate that it was designed as a general test of whether to imply a cause of action under a statute not otherwise providing for one. As set out by the Supreme Court, the relative factors to take into consideration are: (1) whether the plaintiff is one of the class for whose especial benefit the statute was enacted; (2) whether there is any indication of legislative intent, explicit or implicit, either to create such a remedy or deny one; (3) whether it is consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff; and (4) whether the cause of action is one traditionally relegated to state law, so that a cause of action based solely on federal law would be inappropriate. Under this four part test, we conclude that no right of action under Title VII should be implied in this situation. Initially, it is clear that the first ■ and last factors mentioned in Cort v. Ash, supra, would tend to support the creation of a right of action. The plaintiffs, as alleged discriminatees, can be assumed to be among the class of persons for whose benefit Title VII was enacted, and this is not" }, { "docid": "23172933", "title": "", "text": "Although the language of § 1981(e) explicitly “proteet[s]” the rights enumerated in § 1981(a) against “impairment” by a “nongovernmental” entity or “under color of State law[,]” it does not, in so many words, authorize a private cause of action against municipalities. We must therefore consider whether a private cause of action against state actors is implicit in the new § 1981(c). A little over two decades ago, the Supreme Court announced the modern implied remedy doctrine, which provides the analytical framework for determining whether a private cause of action is implied in a statute that does not expressly provide one. Beginning with Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Court outlined the factors to be considered in determining whether a statute implies a private cause of action for damages: (1) Is the plaintiff one of the class for whose “especial benefit” the statute was enacted; that is, does the statute create a federal right in favor of the plaintiff? (2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? (3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? (4) Is the cause of action one traditionally relegated to state law, so that it would be inappropriate to infer a cause of action based solely on federal law? Cort, 422 U.S. at 78, 95 S.Ct. at 2088 (internal quotations omitted) (emphasis in the original). Although the four-factor test outlined in Cort remains the starting point for determining whether a cause of action is implied in a statute, subsequent Supreme Court decisions state that the principal focus of the analysis is whether Congress intended to create a private right of action: “The central inquiry [is] whether Congress intended to create, either expressly or by implication, a private cause of action.” Touche Ross & Co. v. Redington, 442 U.S. 560, 575, 99 S.Ct. 2479, 2489, 61 L.Ed.2d 82 (1979) (emphasis added); accord Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16, 100 S.Ct." }, { "docid": "19305297", "title": "", "text": "of GST Tucson Lightwave, Inc. v. City of Tucson, 950 F.Supp. 968 (D.Ariz.1996), which held that there is not available an implied private right of action under section 253(c). Plaintiff argues that a cause of action is implied in section 253(c) and that an examination of the relevant factors, including the legislative history, makes it clear that Congress intended to include a private right of action. The Court agrees. Although section 253(c) does not make explicit a private right of action, such a right may be implied. The Supreme Court has set forth the factors relevant in determining whether a private remedy is implicit in a statute not expressly providing one. The factors are: First, is the plaintiff “one of the class for whose especial benefit the statute was enacted,” that is, does the statute create a federal right in favor of the plaintiff? Seeond, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff. 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? Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). In applying the above factors from Cort to 47 U.S.C. § 253, it is clear to the Court that there is implied a private right of action. First, plaintiff is one of the class for whose benefit the statute was enacted. Plaintiff is a telecommunications provider. The statute is entitled “removal of barriers to entry” and its purpose, as well as the general legislative scheme of the Act, is to stimulate competition among telecommunications providers. Ac cordingly, plaintiff is one of the class for whose benefit the act was passed. Second, the legislative history evinces an intent by Congress to create a cause of action under 253(c). The comments made during" }, { "docid": "5036661", "title": "", "text": "Time, Inc. v. Hill, 385 U.S. 374, 386-91, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967); cf. Cantrell v. Forest City Publishing Co., 419 U.S. 245, 249-52, .95 S.Ct. 465, 42 L.Ed.2d 419 (1974). As was discussed earlier, the plaintiff in this case cannot show that the Post and Dash published the erroneous initial article with knowledge of its falsity or in reckless disregard of the truth. Therefore, the defendants will be granted summary judgment on all of plaintiff’s invasion of privacy claims against the Post and Dash. II. Plaintiff’s Claims Against Russo, Dr. West, and the District of Columbia. The plaintiff also asserts numerous claims against Russo, Dr. West, and the District of Columbia. Against this set of defendants the plaintiff asserts claims of violation of the confidentiality provisions of the Drug Abuse Office and Treatment Act of 1972, 21 U.S.C. § 1175, defamation, invasion of privacy, and violation of the confidentiality of the physician-patient relationship. A. The Drug Abuse Office and Treatment Act Claims. Plaintiff’s attempt to base a cause of action on 21 U.S.C. § 1175 will be discussed first. Clearly the act does not specifically provide for a private damages action and the plaintiff requests that this court hold that such a cause of action is implied in the Act’s provisions. The Supreme Court, in Cort v. Ash, outlined four factors to be considered in determining whether a private cause of action should be implied from a statute: 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,’ — that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication in the legislative intent, explicit or implicit, either to create such a remedy or deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the" } ]

[ { "docid": "23284392", "title": "", "text": "18 U.S.C. §§ 844(h), 924(c), and 929(a) provide mandatory minimum penalties for the conduct proscribed. To avoid double counting, when a sentence under this section is imposed in conjunction with a sentence for an underlying offense, any specific offense characteristic for explosive dr firearm discharge, use, or possession is not applied in respect to such underlying offense. U.S.S.G. § 2K2.4 comment, (backg’d). The specific offense characteristic at issue here falls squarely within this provision. See, e.g., United States v. Blake, 59 F.3d 138, 139-40 (10th Cir.) (“[A] sentencing court cannot enhance a defendant’s sentence for a robbery under the Guidelines by reason of his use of a firearm if the defendant has been separately convicted and is being sentenced under § 924(c) for using the firearm in the commission of the same robbery. To do so would impermissibly double count contrary to the language and policy of the Sentencing Guidelines.”), cert. denied, — U.S.-, 116 S.Ct. 580, 133 L.Ed.2d 502 (1995). However, vacating the Langs’ § 924(c) convictions pursuant to Bailey eliminates this prohibition. We have previously held this enhancement may be imposed at sentencing after a defendant has been acquitted of a § 924(c) charge. United States v. Martinez, 979 F.2d 1424, 1433-34 (10th Cir.1992), cert. denied, 507 U.S. 1022, 113 S.Ct. 1824, 123 L.Ed.2d 454 (1993); United States v. Eagan, 965 F.2d 887, 892 (10th Cir.1992). We find no persuasive reason to treat an appellate reversal on sufficiency of evidence grounds any differently. In fact, the two circuits who have addressed this precise issue following Bailey have determined a remand for resentencing was appropriate. United States v. Fennell, 77 F.3d 510, 510-11 (D.C.Cir.1996) (per curiam); United States v. Roulette, 75 F.3d 418, 426 (8th Cir.1996) (“The prohibition against applying the two level enhancement is no longer applicable, because the firearm sentence on Count 4 has been set aside.”). Therefore, we hold when a defendant’s conviction under 18 U.S.C. § 924(c) is reversed on sufficiency of evidence grounds on appeal, the case is subject to remand for resentencing to determine the applicability of the enhancement found at U.S.S.G. §" } ]

[ { "docid": "19853140", "title": "", "text": "whose § 924(c) conviction has been vacated pursuant to Bailey in a collateral attack under 28 U.S.C. § 2255. No Court of Appeals has yet ruled on this issue, and even within this circuit, numerous district courts have been sharply divided. Compare United States v. Tolson, 935 F.Supp. 17, 19 (D.D.C.1996) (Green, Joyce Hens, J.) with United States v. Greenwood, Civ.A. No. 96-00784, 1996 WL 577141, at *1 (D.D.C. Sept. 25, 1996) (Sporkin, J.). One issue is not in dispute, however. It is well-settled that, in the context of a remand from direct appeal, a district court is authorized to resentence the defendant. See United States v. Fennell, 77 F.3d 510 (D.C.Cir.1996); see also United States v. Hawthorne, 94 F.3d 118, 122 (4th Cir.1996). Ray contended, however, that where the situation involves collateral review, the jurisdictional requirements for resentencing are more stringent. See Hillary v. United States, Civ. No. JFM-96-1842 (D.Md. Aug. 7, 1996) (distinguishing direct appeal from collateral review). In general, the Sentencing Reform Act of 1984 mandates that, once a district court imposes its sentence, it may not modify the terms of imprisonment unless specifically authorized to do so. See 18 U.S.C. § 3582(e) (1994) (modification must be “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure”). In the context of direct appeal, that express permission is found in the statute governing appeals, see 28 U.S.C. § 2106 (1994). The Government here contended that the statute governing collateral review, see 28 U.S.C. § 2255, also provides an express grant of permission. Section 2255 requires that the district court, in granting post-conviction relief, “vacate and set the judgment aside and ... discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” See id. (emphasis added). Although there is no consensus as to the proper interpretation of § 2255, and the matter is not free from doubt, the established sentencing process more nearly comports with those courts holding that the vacatur of a judgment pursuant to § 2255 requires the defendant to be resentenced on" }, { "docid": "10115226", "title": "", "text": "728-30; United States v. Shue, 825 F.2d 1111, 1115 (7th Cir.1987). Because the defendant has no legitimate expectation of finality in any discrete part of an interdependent sentence after a partially successful appeal or collateral attack, there is no double jeopardy bar to enhancing an unchallenged part of an interdependent sentence to fulfill the court’s original intent. See Binford, 108 F.3d 723, 728-30; Handa, 110 F.3d 42, 44; Shue, 825 F.2d at 1115. Since Harrison has served less than 121 months of his original drug term, we need not decide whether double jeopardy bars resentencing of a § 2255 petitioner on fully served parts of an interdependent sentence. Compare Woodhouse v. United States, 109 F.3d 347, 347-48 (7th Cir.1997) (no expectation of finality in fully served drug term) with Warner v. United States, 926 F.Supp. 1387, 1393-94 (E.D.Ark.1996) (expectation of finality in fully served drug term). Last, Harrison contends the Government is seeking the gun possession enhancement to penalize him for filing a § 2255 motion, and thus, his resentencing violates his right to due process. We find no evidence of vindictiveness in Harrison’s resentencing. Harrison’s total sentence has been reduced by almost three years and the district court resentenced Harrison according to the court’s original sentencing plan. See Shue, 825 F.2d at 1115-16. In these circumstances, we conclude Harrison’s resentencing does not violate due process. Imposing a sentence that the Guidelines make appropriate for Harrison’s conduct is not fundamentally unfair. Harrison possessed a gun during the drug conspiracy, and the enhancement for its possession was blocked at his original sentencing only by his separate § 924(c) gun conviction, which was later deemed legally unsound. If we did not permit resentencing of defendants who successfully challenge § 924(c) convictions in § 2255 proceedings, they would receive lighter sentences than defendants who successfully attack their § 924(c) convictions on direct appeal and can be resentenced. Permitting resentencing on the drug conviction simply puts Harrison back in the situation he would have faced under the law at the time of his arrest had the erroneous gun charge not been brought. See Handa," }, { "docid": "10115221", "title": "", "text": "101 F.3d 557, 558-59 (8th Cir.1996), the district court did not consider whether the enhancement applied at Harrison’s original sentencing. Following a resentencing hearing, the district court vacated the sixty month term originally imposed on the erroneous gun conviction. The district court found the firearm possession enhancement applied and imposed a revised term of 151 months imprisonment on the drug conviction, thirty months less than Harrison’s total original sentence. The district court told Harrison, “The sentence [imposed] today is the sentence that you would have received [on the drug charge at your original sentencing in May 1992] had there not been a gun count mandating a consecutive five year sentence____” Harrison appeals his revised drug sentence. We affirm. Because Harrison did not challenge the drug conviction or sentence in his § 2255 motion, Harrison contends the district court lacked jurisdiction to resentence him on the drug conviction and should have simply vacated his erroneous gun sentence. If Harrison had successfully attacked his gun conviction on direct appeal rather than collaterally, our earlier cases would permit his resentencing. We have held that when Bailey requires reversal of a § 924(c) conviction on direct appeal, the district court may consider whether an unchallenged drug sentence should be enhanced for possession of a firearm. See United States v. Behler, 100 F.3d 632, 640 (8th Cir.1996); United States v. Rehkop, 96 F.3d 301, 306 (8th Cir.1996); United States v. Thomas, 93 F.3d 479, 488 (8th Cir.1996). In this ease, we must decide whether similar resentencing is permissible after reversal of a gun conviction in a collateral proceeding. Agreeing with the circuits that have decided the issue, we conclude the district court had power to resentenee Harrison on his drug conviction. See United States v. Binford, 108 F.3d 723, 728-29 (7th Cir.1997)(28 U.S.C. § 2255 confers jurisdiction); United States v. Hillary, 106 F.3d 1170, 1171-73 (4th Cir.1997) (same); see also United States v. Handa, 110 F.3d 42, 43-44 (9th Cir.1997) (holding circuit precedent and government concession prevented adoption of view that § 2255 permits resentencing after reversal of § 924(e) conviction, but court of appeals" }, { "docid": "23205582", "title": "", "text": "conduct a resentencing to enhance Hillary’s sentence under § 2D 1.1(b)(1), but the district court held that it lacked jurisdiction under § 2255 to conduct a resentencing. Id. at 1171. On the Government’s appeal, we vacated and remanded for resentencing, noting that § 2255 gives the district courts “broad and flexible power ... to fashion an appropriate remedy,” id. at 1171 (internal quotation marks omitted), and holding that this power included the authority to conduct a resentencing, id. at 1172-73. Hillary does not help Hadden. Hillary held only that the district court is authorized to conduct a resentencing in awarding relief pursuant to § 2255, not that the district court is required, in resolving every § 2255 petition, to conduct a resentencing. See id. at 1172 (concluding that resentencing is “permitted]” when a § 924(c) conviction is vacated on collateral review); United States v. Smith, 115 F.3d 241 (4th Cir.1997) (determining that the district court “had jurisdiction” to resentence the defendant after a successful collateral attack of his § 924(c) conviction); United States v. Hawthorne, 94 F.3d 118, 122 (4th Cir.1996) (noting that the Government “may” pursue resentencing if it elects to forgo a second trial on the § 924(c) charge). Hadden argues, however, that the district court erred in failing to conduct a resentencing here because he, like the Government in Hillary, requested a resentencing. This argument is based on a misreading of Hillary. We did not direct that resentencing take place in Hillary because the Government requested it. Instead, we remanded the case with instructions to conduct a resentencing because the district court’s refusal to do so in the first instance was based on the erroneous legal conclusion that it lacked the authority to resentence Hillary and because the district court generally may not make a prisoner’s sentence more onerous without conducting a resentencing. See, e.g., Erwin, 277 F.3d at 731 (affirming district court’s decision to modify prisoner’s sentence to account for vacated conviction without conducting a resentencing because the modification was “a downward correction of [the prisoner’s] illegal sentence”); United States v. Moree, 928 F.2d 654, 655-56" }, { "docid": "10115222", "title": "", "text": "his resentencing. We have held that when Bailey requires reversal of a § 924(c) conviction on direct appeal, the district court may consider whether an unchallenged drug sentence should be enhanced for possession of a firearm. See United States v. Behler, 100 F.3d 632, 640 (8th Cir.1996); United States v. Rehkop, 96 F.3d 301, 306 (8th Cir.1996); United States v. Thomas, 93 F.3d 479, 488 (8th Cir.1996). In this ease, we must decide whether similar resentencing is permissible after reversal of a gun conviction in a collateral proceeding. Agreeing with the circuits that have decided the issue, we conclude the district court had power to resentenee Harrison on his drug conviction. See United States v. Binford, 108 F.3d 723, 728-29 (7th Cir.1997)(28 U.S.C. § 2255 confers jurisdiction); United States v. Hillary, 106 F.3d 1170, 1171-73 (4th Cir.1997) (same); see also United States v. Handa, 110 F.3d 42, 43-44 (9th Cir.1997) (holding circuit precedent and government concession prevented adoption of view that § 2255 permits resentencing after reversal of § 924(e) conviction, but court of appeals had authority under 28 U.S.C. § 2106 to vacate defendant’s entire sentence and remand for resentencing on drug conviction). The district court can modify a previously imposed term of imprisonment if expressly permitted by statute. See 18 U.S.C. § 3582(c)(1)(B) (1994). Harrison contends § 2255 does not permit modification of his drug sentence. We disagree. Section 2255 provides: A prisoner in custody under sentence ... claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States ... may move the court which imposed the sentence to vacate, set aside or correct the sentence____ If the court finds that ... the sentence imposed was not authorized by law ... the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence [the prisoner] or grant a new trial or correct the sentence as may appear appropriate. The statute gives district courts broad and flexible remedial authority to resentence a defendant and to correct the sentence as appropriate. See" }, { "docid": "16477779", "title": "", "text": "pending the instant appeal. II. DISCUSSION Smith raises three primary challenges to the district court’s imposition of eighty-nine months of imprisonment on Counts One and Two of the indictment. First, he argues that the district court did not have jurisdiction to impose the eighty-nine month term. Second, assuming the district court had jurisdiction, the district court’s imposition of the eighty-nine month term violated the Fifth Amendment’s Double Jeopardy Clause. Third, assuming jurisdiction, the district court’s imposition of the eighty-nine month term violated Smith’s due process rights under the Fifth Amendment. All issues involve questions of law and are reviewable de novo. United States v. Payne, 952 F.2d 827, 828 (4th Cir.1991). A Jurisdiction Smith argues that the district court lacked jurisdiction to résentence him on Counts One and Two because in his § 2255 motion, he only challenged his § 924(c) conviction (Count Three). Thus, Smith contends that the district court was without jurisdiction to address the sentences imposed on Counts One and Two. The Fourth Circuit in United States v. Hawthorne, 94 F.3d 118 (4th Cir.1996), has held that, where Bailey requires reversal of a § 924(c) conviction on direct appeal, the case may be remanded for resentencing on drug related counts, as long as the government agrees to forego reproseeution on the § 924(e) count. Id. at 122. The question presented in Smith’s first issue, is consequently whether that same rule should apply to a § 924(c) conviction which is attacked not by direct appeal but on collateral review. That precise question, however, has been recently resolved in United States v. Hillary, 106 F.3d 1170 (4th Cir.1997). In Hillary, this court held that the same rule employed within the direct appeal context should apply to convictions attacked via collateral review. Like here, in Hillary, the government agreed that the § 924(c) conviction should be vacated but contended that the defendant should be resentenced on the remaining counts to provide the government with an opportunity to argue for an enhancement under U.S.S.G. § 2Dl.l(b)(l) because of the defendant’s possession of a firearm. Id. at 1171 (citing Hillary v. United" }, { "docid": "23630842", "title": "", "text": "evidence to prove that he actively employed the 9mm gun found in the motel room. We agree. In light of Bailey, the facts of this case do not allow Thomas to be convicted under § 924(c)(1). At the time of his arrest, the firearm was well outside of Thomas’s control. In no way can it be said that a firearm concealed under a pillow in an unoccupied motel room constitutes active employment. The government asks that we remand for resentencing. The government draws our attention to the fact that once Thomas’s § 924(c) conviction is reversed, a two level upward adjustment may be appropriate under § 2Dl.l(b)(l) of the sentencing guidelines. Under § 2Dl.l(b)(l), it is a specific offense characteristic if “a dangerous weapon (including a firearm) was possessed” by the defendant and warrants a two level sentence increase. The district court did not consider this sentencing provision because, at the time he was sentenced, Thomas was ineligible for a § 2Dl.l(b)(l) sentence increase. The sentencing guidelines prohibits double counting and therefore, because of Thomas’s conviction on the § 924(c) firearm charge, the district court was precluded from applying a § 2Dl.l(b)(l) increase. See U.S.S.G. § 2K2.4, comment, (n. 2). In light of our decision to vacate Thomas’s § 924(c) conviction, however, this double counting concern is eliminated and it is appropriate to remand to the district court to allow it to resentence Thomas. See United States v. Roulette, 75 F.3d 418, 426 (8th Cir.1996) (“The prohibition against applying the two level enhancement is no longer applicable, because the firearm sentence on Count 4 has been set aside.”); see also United States v. Clements, 86 F.3d 599, 600-01 (6th Cir.1996) (vacating § 924(c) conviction and remanding for consideration of a two level increase under U.S.S.G. § 2D1.1(b)(1)); United States v. Lang, 81 F.3d 955, 963 (10th Cir.1996) (same); United States v. Fennell, 77 F.3d 510, 510-11 (D.C.Cir.1996) (per curiam) (same). We therefore reverse Thomas’s § 924(c) conviction, vacate his sentence, and remand the case to the district court, which should consider whether a sentence enhancement under U.S.S.G. § 2Dl.l(b)(l) is" }, { "docid": "8797000", "title": "", "text": "Lang, 81 F.3d 955, 963-64 (10th Cir.1996); United States v. Giraldo, 80 F.3d 667, 677 (2d Cir.1996); United States v. Fennell, 77 F.3d 510, 510-11 (D.C.Cir.1996). We follow in the stead of our sister circuits. The Sentencing Guidelines provide for an increase in the base offense level for certain drug trafficking offenses “[i]f a dangerous wéapon (including a firearm) was possessed” during the offense. U.S.S.G. § 2Dl.l(b)(l). The district court was precluded from enhancing Jackson’s sentence pursuant to § 2Dl.l(b)(l) because the Sentencing Guidelines prohibit so-called “double counting”— applying an enhancement in conjunction with a § 924(c) conviction. See U.S.S.G. § 2K2.4 background (explaining that when a defendant is sentenced to the five-year consecutive minimum sentence under § 924(e), a specific offense characteristic for possession of a firearm is not to be applied to the guideline for the underlying offense). However, reversing Jackson’s § 924(c) conviction in light of Bailey removes this impediment. In a case on a direct appeal from multiple-count criminal convictions, an appellate court has the supervisory power to vacate interdependent sentences even if only one of the sentences is reversed on appeal. 28 U.S.C. § 2106; Clements, 86 F.3d at 600-01 (citations omitted). Jackson’s sentences for his multiple convictions were interdependent. The § 924(c) conviction prohibited the district court from exercising its discretion to increase Jackson’s offense level on the conspiracy conviction pursuant to § 2Dl.l(b)(l) ■because of the rule against double counting. See Clements, 86 F.3d at 601. Therefore, it is within our power to vacate Jackson’s sentence and remand to the district court for resentencing. We explicitly offer no opinion on whether an enhancement is appropriate under the facts of this ease, but leave that determination to the discretion of the district court. IV. Challenges to Sentencing A. Classification as a Career Offender The district court classified Jackson as a career offender, which had the effect of enhancing his sentence, and Jackson now challenges that classification. Under the Sentencing Guidelines, a “defendant is a career offender if (1) the defendant was at least eighteen years old at the time of the instant offense, (2)" }, { "docid": "16770677", "title": "", "text": "conviction and sentence for that charge, but, as in this case, did not make any reference to resentencing on the remaining drug conviction. Upon remand, the district court resentenced Smith on his drug conviction, applying the two-level enhancement under U.S.S.G. § 2D1.1(b)(1). Smith then appealed, asserting that the re-sentencing violated the mandate rule because the order to set aside the section 924 conviction precluded the court from reconsidering the sentence for the drug count. We rejected that argument, stating that “[o]nee the sentence on the firearms charge is ‘set aside’ the district court is no longer prohibited from considering appropriate enhancements on the remaining drug count.” Id. at 859. Although the mandate in Hicks’s ease varies slightly from the mandate in Smith, we do not find the difference significant. In Smith, we remanded with the following instructions: “[W]e REVERSE Smith’s conviction under 18 U.S.C. § 924(c)(1) ... and REMAND with directions that the conviction and sentence thereon be set aside.” United States v. Smith, 82 F.3d 1564, 1568 (10th Cir.1996). In Hicks’s case we not only reversed his section 924 conviction and vacated his sentence for that offense, but we also stated that his “convictions and sentences are AFFIRMED in all other respects.” Miller, 84 F.3d at 1263. However, our affirmance of the other convictions and sentences did not limit the district court’s authority to revisit those sentences after we vacated the section 924 conviction. “The fact that [we] ‘affirmed’ the defendant[’s] drug trafficking offenses was nothing more than a rejection of the defendant’s attacks on those sentences.” Van Pelt, 938 F.Supp. at 705. It is true that in at least one of our “Bailey-fix” cases, we specifically instructed the district court to resentence the defendant under U.S.S.G. § 2Dl.l(b)(l) on the remaining drug count. See United States v. Lang, 81 F.3d 955, 963-64 (10th Cir.1996). However, our holdings here and in Smith demonstrate that the type of specific instruction that we issued in Lang is not a prerequisite to the district court’s authority to resentence. Our silence on the issue of enhancement on remand should not be construed as" }, { "docid": "21029202", "title": "", "text": "that federal trial courts have only such jurisdiction as Congress has granted and that there is no grant of jurisdiction to revise, on collateral attack, a sentence that has already become final. Rodriguez argues that Congress has expressly limited a court’s ability to modify an already imposed sentence to the three situations outlined in 18 U.S.C. § 3582(c). Two of the circumstances described in that section are inapplicable here, and so, he contends, the district court may only resentence him to the extent “expressly permitted by statute or by Rule 35 of the Federal Rules of Criminal Procedure.” 18 U.S.C. § 3582(c)(1)(B). On direct appeal (in contrast to the § 2255 review here), this court has permitted resentencing for a drug trafficking conviction where defendant’s § 924(c) conviction was set aside, post-Bailey: Since it is conceivable that our disposition of the [firearms] count might affect the sentencing calculus in regard to the [drug trafficking] count, we honor counsels’ joint request and remand to the district court for possible reconsideration of the sentence originally imposed on the drug trafficking count. United States v. Valle, 72 F.3d 210, 218 (1st Cir.1995). At least seven other circuits have similarly determined that, when a conviction under § 924(c) is reversed on appeal in light of Bailey, it is appropriate to remand to the district court for resentencing on the remaining convictions. See United States v. Jackson, 103 F.3d 561, 569 (7th Cir.1996)(citing cases). Rodriguez concedes that such resentencing on remand after direct appeal may be appropriate because 28 U.S.C. § 2106 permits the appellate court to “affirm, modify, vacate, set aside or reverse any judgment ... brought before it for review” and to “remand the cause and ... require such further proceedings to be had as may be just under the circumstances.” 28 U.S.C. § 2106. But that statutory language is inapplicable here, Rodriguez argues, because the drug trafficking convictions in this case have already become final after appeal; thus, § 2106’s broad grant of remedial power to the appellate court cannot be read to empower the district court on a § 2255 motion." }, { "docid": "19853139", "title": "", "text": "of imprisonment (to be served concurrently) for his narcotics convictions, and one 60-month term of imprisonment (to be served consecutively) for his § 924(c) conviction. In April 1996, Ray moved pursuant to 28 U.S.C. § 2255 to vacate, set aside, or correct his sentence insofar as it was based on his conviction under 18 U.S.C. § 924(c). He relied on the Supreme Court’s intervening decision in Bailey v. United States, which interpreted § 924(c) in such a manner as to place his conduct outside the purview of that statute. The Government agreed that there was insufficient evidence to sustain the § 924(c) conviction, and that Ray was entitled to post-conviction relief. An Order dated June 5, 1996 granted Ray’s motion to vacate and set aside his sentence. The Government then moved to resentence Ray on his remaining narcotics convictions, requesting that Ray receive a two-level “gun bump” under the Sentencing Guidelines, see U.S.S.G. § 2Dl.l(b)(l). II. The first issue to be addressed at resentencing was whether a district court has jurisdiction to resentence a defendant whose § 924(c) conviction has been vacated pursuant to Bailey in a collateral attack under 28 U.S.C. § 2255. No Court of Appeals has yet ruled on this issue, and even within this circuit, numerous district courts have been sharply divided. Compare United States v. Tolson, 935 F.Supp. 17, 19 (D.D.C.1996) (Green, Joyce Hens, J.) with United States v. Greenwood, Civ.A. No. 96-00784, 1996 WL 577141, at *1 (D.D.C. Sept. 25, 1996) (Sporkin, J.). One issue is not in dispute, however. It is well-settled that, in the context of a remand from direct appeal, a district court is authorized to resentence the defendant. See United States v. Fennell, 77 F.3d 510 (D.C.Cir.1996); see also United States v. Hawthorne, 94 F.3d 118, 122 (4th Cir.1996). Ray contended, however, that where the situation involves collateral review, the jurisdictional requirements for resentencing are more stringent. See Hillary v. United States, Civ. No. JFM-96-1842 (D.Md. Aug. 7, 1996) (distinguishing direct appeal from collateral review). In general, the Sentencing Reform Act of 1984 mandates that, once a district court imposes" }, { "docid": "23663900", "title": "", "text": "beyond a reasonable doubt whether the jury reached a constitutional verdict. Hence, the government was prepared to consent to vacating the conviction. On the other hand, the government requested that defense counsel consent to resentencing on the drug count, which would give the government the opportunity to argue that Hillary’s sentence should be enhanced by two levels under U.S.S.G. § 2Dl.l(b)(l) for his possession of a firearm. The propriety of such an enhancement had not been adjudicated at the original sentencing, because the enhancement does not apply to possession of a weapon for which the defendant has been convicted under § 924(e). U.S.S.G. § 2K2.4 comment, (n.2 & backg’d). Defense counsel refused. On May 2, 1996, defense counsel wrote to the district court describing the parties’ positions. On May 9, under the mistaken impression that the government had no objection, the district court vacated Hillary’s § 924(c) conviction. The government then moved to reconsider. The district court acknowledged its mistake, granted reconsideration, and vacated its earlier order. Further, the court suggested that Hillary file a 28 U.S.C. § 2255 motion so that the legal issues could be resolved in a formal adversary proceeding. Hillary filed such a motion. The court held a hearing on July 23, 1996. On August 6, the court issued a memorandum opinion and order vacating Hillary’s conviction, but denying the government’s request for resentencing, concluding that it lacked jurisdiction to do so. Hillary v. United States, No. JFM-96-1842 (D.Md. Aug. 6, 1996), as amended Aug. 7, 1996). The government appeals. II. This case presents yet another of the sometimes perplexing issues engendered by the Bailey decision and the years of settled (albeit erroneous) practice that it upset. We have already decided that where Bailey requires reversal of a § 924(e) conviction on direct appeal, we may remand for resentenc-ing on related drug counts, so long as the government agrees to forgo reprosecution on the § 924(c) count. United States v. Hawthorne, 94 F.3d 118, 122 (4th Cir.1996). The issue here is whether a similar rule should apply on collateral review. We start where we should always" }, { "docid": "8796999", "title": "", "text": "there is no evidence that Jackson “carried” the firearms in relation to a drug trafficking crime. The handgun was found between the arm rest and seat cushion of the couch in the living room, and the shotgun was found against a dresser in Jackson’s bedroom. Thus, it is appropriate for us to reverse the conviction on Count 5. Nonetheless, Bailey does not render the presence of the firearms in Jackson’s house irrelevant. The Government requests that we remand the ease for resentencing so that it may seek an enhancement of the base offense level on Count 1. While this circuit has not previously evaluated the propriety of such a request, other circuits have determined that where an appellant’s conviction under § 924(c) is reversed in light of Bailey, it is appropriate to remand for resentencing on the affirmed convictions. See, e.g., United States v. Lopez, 100 F.3d 98, 101-03 (9th Cir. 1996); United States v. Thomas, 93 F.3d 479, 488 (8th Cir.1996); United States v. Clements, 86 F.3d 599, 600-01 (6th Cir.1996); United States v. Lang, 81 F.3d 955, 963-64 (10th Cir.1996); United States v. Giraldo, 80 F.3d 667, 677 (2d Cir.1996); United States v. Fennell, 77 F.3d 510, 510-11 (D.C.Cir.1996). We follow in the stead of our sister circuits. The Sentencing Guidelines provide for an increase in the base offense level for certain drug trafficking offenses “[i]f a dangerous wéapon (including a firearm) was possessed” during the offense. U.S.S.G. § 2Dl.l(b)(l). The district court was precluded from enhancing Jackson’s sentence pursuant to § 2Dl.l(b)(l) because the Sentencing Guidelines prohibit so-called “double counting”— applying an enhancement in conjunction with a § 924(c) conviction. See U.S.S.G. § 2K2.4 background (explaining that when a defendant is sentenced to the five-year consecutive minimum sentence under § 924(e), a specific offense characteristic for possession of a firearm is not to be applied to the guideline for the underlying offense). However, reversing Jackson’s § 924(c) conviction in light of Bailey removes this impediment. In a case on a direct appeal from multiple-count criminal convictions, an appellate court has the supervisory power to vacate interdependent sentences" }, { "docid": "16477780", "title": "", "text": "(4th Cir.1996), has held that, where Bailey requires reversal of a § 924(c) conviction on direct appeal, the case may be remanded for resentencing on drug related counts, as long as the government agrees to forego reproseeution on the § 924(e) count. Id. at 122. The question presented in Smith’s first issue, is consequently whether that same rule should apply to a § 924(c) conviction which is attacked not by direct appeal but on collateral review. That precise question, however, has been recently resolved in United States v. Hillary, 106 F.3d 1170 (4th Cir.1997). In Hillary, this court held that the same rule employed within the direct appeal context should apply to convictions attacked via collateral review. Like here, in Hillary, the government agreed that the § 924(c) conviction should be vacated but contended that the defendant should be resentenced on the remaining counts to provide the government with an opportunity to argue for an enhancement under U.S.S.G. § 2Dl.l(b)(l) because of the defendant’s possession of a firearm. Id. at 1171 (citing Hillary v. United States, No. JFM 96-1842 (D.Md. Aug. 6, 1996), as amended, Aug. 7, 1996.) The district court in Hillary granted the defendant’s motion to vacate the § 924(c) conviction, but refused the government’s request for resentencing concluding that the court was without jurisdiction to do so. Id. In reversing the district court, Hillary began its analysis with the language of § 2255. Section 2255 provides, in relevant part: A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside, or correct the sentence. ... If the court finds that the judgment was entered without jurisdiction, or that the sentence imposed was not authorized by law" }, { "docid": "3635285", "title": "", "text": "government that remanding the case for resentencing would permit a sentence that appropriately reflects the enhanced danger posed when a defendant possesses a loaded firearm while engaged in drug trafficking. See 28 U.S.C. § 2106. ' The government may “ask the court of appeals to exercise its discretion under § 2106” to order resentencing on the counts of a defendant’s sentence that were affirmed. United States v. Minor, 846 F.2d 1184, 1189 (9th Cir.1988). Here, counts one and three were affirmed in our previous disposition. However, where a sentence under Chapter 2 of the United States Sentencing Guidelines is imposed in conjunction with a sentence for an underlying offense {e.g., possession of heroin with intent to distribute), no specific offense characteristic for the possession, use, or discharge of a firearm {e.g., § 2Dl.l(b)(l)) may be applied in respect to the guideline for the underlying offense. See U.S.S.G. § 2k2.4 application note 2. In. light of our decision to reverse Lopez’ and Fuentes’ convictions on count five, however, this double counting concern is eliminated on count one (conspiracy to distribute heroin) and it is appropriate to remand to the district court to allow.it to resentence Lopez and Fuentes. See, e.g., United States v. Thomas, 93 F.3d 479, 488 (8th Cir.1996) (vacating § 924(c) conviction and remanding for reconsideration of a two level increase under U.S.S.G. § 2Dl.l(b)(l)); United States v. Clements, 86 F.3d 599, 600-01 (6th Cir.1996) (same); United States v. Lang, 81 F.3d 955, 963 (10th Cir.1996) (same); United States v. Fennell, 77 F.3d 510, 510-11 (D.C.Cir.1996) (per curiam) (same). We therefore affirm the sentence on count three and remand count one to the district court, which should consider whether a sentence enhancement under U.S.S.G. § 2D1.1(b)(1) is warranted. Ill Finally; Lopez and Fuentes argue that even if the evidence was sufficient to support their convictions on count four for carrying the firearm, the convictions should be vacated because the jury, instructions defining the term “use or carry” were erroneous. To the extent the jury instructions did not restrict “use” to active employment of a firearm, the government concedes that" }, { "docid": "10115220", "title": "", "text": "FAGG, Circuit Judge. Charles Harrison pleaded guilty to conspiracy to distribute cocaine base, see 21 U.S.C. §§ 841(a), 846 (1994), and using a gun during the drug crime, see 18 U.S.C. § 924(c). The district court sentenced Harrison to 121 months for the drug offense and sixty consecutive months for the gun offense. After Harrison lost his direct appeal, the Supreme Court decided Bailey v. United States, — U.S. -, 116 S.Ct. 501, 133 L.Ed.2d 472 (1995), which narrowed the definition of “using” a firearm within the meaning of § 924(c). With this new ammunition, Harrison filed a 28 U.S.C. § 2255 motion to vacate his gun sentence. The Government conceded Harrison’s underlying gun conviction should be reversed in light of Bailey, but argued the district court should enhance Harrison’s drug sentence for his possession of a firearm. See U.S. Sentencing Guidelines Manual § 2Dl.l(b)(l) (1996). Because the Guidelines bar the § 2Dl.l(b)(l) enhancement as double counting when a defendant is convicted of violating § 924(c), see id. § 2K2.4 n.2; United States v. Friend, 101 F.3d 557, 558-59 (8th Cir.1996), the district court did not consider whether the enhancement applied at Harrison’s original sentencing. Following a resentencing hearing, the district court vacated the sixty month term originally imposed on the erroneous gun conviction. The district court found the firearm possession enhancement applied and imposed a revised term of 151 months imprisonment on the drug conviction, thirty months less than Harrison’s total original sentence. The district court told Harrison, “The sentence [imposed] today is the sentence that you would have received [on the drug charge at your original sentencing in May 1992] had there not been a gun count mandating a consecutive five year sentence____” Harrison appeals his revised drug sentence. We affirm. Because Harrison did not challenge the drug conviction or sentence in his § 2255 motion, Harrison contends the district court lacked jurisdiction to resentence him on the drug conviction and should have simply vacated his erroneous gun sentence. If Harrison had successfully attacked his gun conviction on direct appeal rather than collaterally, our earlier cases would permit" }, { "docid": "8095799", "title": "", "text": "206-08 (E.D.Va.1996) (same). Accordingly, the Court will grant the motion to vacate Alton’s conviction and sentence under § 924(e)(1). Citing United States v. Roulette, 75 F.3d 418 (8th Cir.1996), the Government maintains that the Court should resentence Alton on the drug trafficking count and apply the two-level enhancement for possession of firearms in connection with a drug trafficking offense pursuant to U.S.S.G. § 2Dl.l(b)(l). In Roulette, on direct appeal the Eighth Circuit set aside a § 924(c)(1) conviction in light of Bailey and remanded for resentencing on the remaining drug convictions. 75 F.3d at 420, 426. The Court noted that at the time the original sentence was imposed the sentencing court did not consider increasing the defendant’s base offense level for possession of a dangerous weapon under U.S.S.G. § 2Dl.ll(b)(l) because “Guidelines § 2K2.4, Application Note 2, provides that when a defendant is sentenced to the five year consecutive minimum sentence under 18 U.S.C. § 924(c), a specific offense characteristic for possession of a firearm is not to be applied to the guideline for the underlying offense.” Id. at 426. Because the Court set aside the § 924(c)(1) conviction and the prohibition against imposing the two-level enhancement no longer applied, the Court remanded for resentencing. Id. Alton argues that resentencing him on the drug trafficking offense would violate the Double Jeopardy Clause and the Due Process Clause of the Fifth Amendment. He correctly observes that Roulette was decided on direct appeal rather than on collateral review and thus the defendant’s convictions and sentences in that case had not yet become final. Alton further asserts that the defendant in Roulette challenged his sentences on both the drug and gun convictions thereby opening the door to resentencing. In contrast, Alton maintains that he did not challenge his sentence on the drug conviction; therefore, he has a greater expectation of finality with respect to that sentence than did the defendant in Roulette. Finally, Alton contends that this Court lacks authority to modify the valid sentence imposed for the drug convictions. A number of courts have addressed the double jeopardy and due process issues" }, { "docid": "21081024", "title": "", "text": "18 (3d Cir.1990)(applied in direct appeal context)). After vacating the § 924(c) count, the district court resentenced Davis to 95 months imprisonment. The new sentence is shorter than the original sentence of 123 months. Thus, the resentencing did not violate Davis’ due process rights as Davis did not have a reasonable expectation of finality as to his sentence. Accordingly, we will affirm the decision of the District Court. . The Supreme Court's decision in Bailey requires the government to prove \"active employment” of a firearm to sustain a conviction under the use prong of section 924(c). Bailey,-U.S. at-, 116 S.Ct. at 505. . This two level enhancement was not available at the time of original sentencing because the Sentencing Guidelines do not permit a § 2D1.1(b)(1) enhancement when a defendant is convicted on both a § 924(c) count and on an underlying drug count. U.S.S.G. § 2K2.4, Commentary Background. Applying the enhancement would have resulted in impermissible double counting, essentially punishing the defendant twice for possession of a firearm, once under § 924(c)(1) and once under U.S.S.G. § 2D1.1(b)(1). Id. . See, e.g., Warner v. United States, 926 F.Supp. 1387, 1398 & n. 8 (E.D.Ark.1996); Gardiner v. United States, Crim. No. 4-89-1269(1) Civ. No. 4-96-251, 1996 WL 224798, at *1 (D.Minn. May 3, 1996); Rodriguez v. United States, 933 F.Supp. 279, (S.D.N.Y.1996). . Davis suggests that the sentencing package doctrine and its rationale do not apply to collateral attacks. Davis also argues that unlike on direct appeal, the defendant on a collateral attack has an expectation in the finality of the sentence imposed on the unchallenged counts. We find this argument unpersuasive for three reasons. First, as the court noted in Rowland, whether a sentence is a \"package” is determined at time of sentencing and is not determined by the form of the appeal. 1996 WL 524090, at *3. Second, the interdependence of the counts and the resulting sentence eliminate any expectation of finality the defendant may have had upon collateral attack, as an attack on one count affects the validity of the aggregate sentence. Mayes, 937 F.Supp. at 661." }, { "docid": "9957128", "title": "", "text": "930 F.Supp. at 1113; Pedretti, 1996 WL 340769, *2. The Merritt Court reasoned that because it had imposed an aggregate sentence, upon resentencing, it must re-examine that sentence and make any appropriate adjustments. While the Merritt Court relied upon direct appeal cases for the “sentencing package” doctrine, the court stated that the same rule should apply in the collateral attack context as well. The Merritt Court found the First Circuit’s reasoning persuasive: [W]hen a defendant is found guilty on a multicount indictment, there is a strong likelihood that the district court will craft a disposition in which the sentences on the various counts form part of an overall plan. When the conviction on one or more of the component counts is vacated, common sense dictates that the judge should be free to review the efficaey of what remains in light of the original plan, and to reconstruct the sentencing architecture upon remand, within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both the crime and the criminal. United States v. Pimienta-Redondo, 874 F.2d 9, 14 (1st Cir.), cert. denied, 493 U.S. 890, 110 S.Ct. 238, 107 L.Ed.2d 185 (1989); see also U.S. v. Clements, 86 F.3d 599, 600-01 (6th Cir.1996) (upholding resentencing where two-level enhancement under § 2Dl.l(b)(l) was applied after the 924(c) count was vacated, because the sentences for those convictions were interdependent). When a defendant is charged and convicted of a violation of 18 U.S.C. § 924(c), a sentencing court is barred from applying the two-level enhancement under § 2Dl.l(b)(l), because of the Double Jeopardy Clause. See, e.g., United States v. Harris, 959 F.2d 246, 266-67 (D.C.Cir.), cert. denied, 506 U.S. 932, 113 S.Ct. 362, 121 L.Ed.2d 275 (1992); Merritt, 930 F.Supp. at 1111 (citing U.S.S.G. § 2K2.4, Background). Absent a 924(c) count, however, Section 2Dl.l(b)(l) provides for a two-level increase “[i]f a dangerous weapon (including a firearm) was possessed.” The two-level enhancement is inextricably linked to, and is interdependent upon, the applicability of the 924(c) count. Although the Court has the authority to recalculate a defendant’s sentence" }, { "docid": "10115227", "title": "", "text": "process. We find no evidence of vindictiveness in Harrison’s resentencing. Harrison’s total sentence has been reduced by almost three years and the district court resentenced Harrison according to the court’s original sentencing plan. See Shue, 825 F.2d at 1115-16. In these circumstances, we conclude Harrison’s resentencing does not violate due process. Imposing a sentence that the Guidelines make appropriate for Harrison’s conduct is not fundamentally unfair. Harrison possessed a gun during the drug conspiracy, and the enhancement for its possession was blocked at his original sentencing only by his separate § 924(c) gun conviction, which was later deemed legally unsound. If we did not permit resentencing of defendants who successfully challenge § 924(c) convictions in § 2255 proceedings, they would receive lighter sentences than defendants who successfully attack their § 924(c) convictions on direct appeal and can be resentenced. Permitting resentencing on the drug conviction simply puts Harrison back in the situation he would have faced under the law at the time of his arrest had the erroneous gun charge not been brought. See Handa, 110 F.3d 42, 44. We affirm the district court. HEANEY, Circuit Judge, dissenting. I dissent because, in my view, the district court lacks jurisdiction to enhance Harrison’s sentence for the drug conviction that he did not challenge in this collateral appeal. Regardless of whether it “seems appropriate to put § 2255 defendants in the same position as defendants on direct appeal by permitting resentencing,” Majority Op., supra, at 137, there is simply no legal basis on which to do so at this stage of the proceedings. Section 2255 permits a prisoner to move the district court for relief if he believes his sentence is unconstitutional and the statute expressly provides the court with authority to vacate, set aside, or correct “the sentence.” Thus, I agree with the majority insofar as it asserts that the district court’s power to resentence Harrison on the unchallenged conviction depends on the breadth of the term “the sentence” in section 2255. I am convinced, however, that in the context of the entire provision, the term’s meaning is clearly limited to" } ]

[ { "docid": "8821339", "title": "", "text": "for libel. However, three years after Miller, the Fifth Circuit unequivocally reaffirmed its earlier view that the first amendment protects reporters from unqualified compelled disclosure of confidential sources. In In re Selcraig, 705 F.2d 789, 792 (1983), the court wrote, We have recognized that the first amendment shields a reporter from being required to disclose the identity of persons who have imparted information to him in confidence. Miller v. Transamerican Press, 621 F.2d 932 (5th Cir.), modified on rehearing, 628 F.2d 932 (5th Cir.1980), cert denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981). Our course was dictated by our careful reading of the plurality and concurring opinions in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The privilege, we held, is not absolute, but qualified. The Selcraig court did not suggest that its holding was limited to civil cases (Sel-craig was a civil rights action for denial of procedural due process by a discharged school district employee). Its ruling was issued in clear, declarative statements. It is noteworthy that in other circuits the qualified privilege has been extended to criminal proceedings. See, e.g., United States v. Cuthbertson, 630 F.2d 139, 147 (3rd Cir.1980), cert. denied, 449 U.S. 1126, 101 S.Ct. 945, 67 L.Ed.2d 113 (1981); United States v. Cuthbertson, 651 F.2d 189, 191, 195-196 (3rd Cir.), cert. denied, 454 U.S. 1056, 102 S.Ct. 604, 70 L.Ed.2d 594 (1981); see also United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir.1986), cert. denied, 483 U.S. 1021, 107 S.Ct. 3265, 97 L.Ed.2d 763 (1987) (applying the Fifth Circuit’s tripartite test for overcoming the assertion of the privilege); United States v. Burke, 700 F.2d 70, 77 (2d Cir.), cert. denied, 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983) (tripartite test applied). As recognized by the court in Cuthbert-son, 630 F.2d at 147, “the interests of the press that form the foundation for the privilege are not diminished because the nature of the underlying proceeding out of which the request for the information arises is a criminal trial.” Nor is the privilege required to" } ]

[ { "docid": "591843", "title": "", "text": "the tried and traditional way of adjudicating such questions.” Id. at 784 (quoting Branzburg, 408 U.S. at 710, 92 S.Ct. 2646 (Powell, J., concurring)). Ten years later, in In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir.), cert. denied sub nom. Arizona v. McGraw-Hill, Inc., 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982), the Second Circuit vacated an order imposing civil contempt sanctions on a publisher who refused to disclose to civil litigants the identities of certain of its confidential sources. See In re Petroleum Products, 680 F.2d at 9. The Petroleum Products court held that the parties seeking disclosure had failed to make the requisite initial showing justifying such disclosure. The court stated: The law in this Circuit is clear that to protect the important interests of reporters and the public in preserving the confidentiality of journalists’ sources, disclosure may be ordered only upon a clear and specific showing that the information is: [1] highly material and relevant, [2] necessary or critical to the maintenance of the claim, and [3] not obtainable from other available sources. Id. at 7 (quoting Baker, 470 F.2d at 783-85) (quotation marks omitted). Like the Baker court before it, the Petroleum Products court distinguished Branzburg on the ground that its holding was “limited to the grand jury setting.” Id. at 9 n. 12. Nonetheless, the Petroleum Products court cited a portion of the Branzburg majority opinion for the proposition that a party seeking disclosure of a reporter’s confidential sources had the “burden of first seeking the information elsewhere.” Id. at 8 (citing Branzburg, 408 U.S. at 706-07, 92 S.Ct. 2646). A year later, in United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983), the Second Circuit affirmed the quashing of a subpoena by which a criminal defendant sought to compel a publisher to produce notes and other work papers relating to a magazine article co-authored by the prosecution’s principal witness. See Burke, 700 F.2d at 78. The Burke court held that the qualified privilege articulated by the Petroleum" }, { "docid": "3727648", "title": "", "text": "v. McDowell, 888 F.2d 285, 289 (3d Cir.1989); accord Eisenberg, 773 F.Supp. at 707. This general rule of grand jury secrecy is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. United States v. Johns, 858 F.2d 154, 158 (3d Cir.1988). “Rule 6(e) applies not only to information drawn from transcripts of grand jury proceedings, but also to anything which may reveal what occurred before the grand jury.” In re Grand Jury Matter, 682 F.2d 61, 63 (3d Cir.1982); see also Fund for Constitutional Gov’t v. National Archives & Records Serv., 656 F.2d 856, 869 (D.C.Cir.1981) (The scope of grand jury secrecy encompasses anything “which would reveal ‘the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the. deliberations or questions of the jurors, and the like.’ ”) (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C.Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980)); accord, Eisenberg, 773 F.Supp. at 707. The secrecy of grand jury proceedings is not absolute. Rule 6(e)(3)(C)(i) authorizes disclosure by court order. The party moving for court-ordered disclosure bears a heavy burden of proving to the court that “the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979) (footnote omitted). Before disclosure of the grand jury transcripts, which would corroborate the Defendants’ arguments can be ordered, the Defendants must offer evidence of a “substantial likelihood of gross or prejudicial irregularities in the conduct of the grand jury.” United States v. Budzanoski, 462 F.2d 443, 454 (3d Cir.) (citing United States v. Politi, 334 F.Supp. 1318, 1322 (S.D.N.Y.1971); United States v. Dioguardi, 332 F.Supp. 7, 20 (S.D.N.Y.1971)), cert. denied, 409 U.S. 949, 93 S.Ct. 271, 34 L.Ed.2d 220 (1972). Only after the Defendants have met this burden does a court balance the" }, { "docid": "6118689", "title": "", "text": "serving the community might suffer if those testifying today knew that the secrecy of their testimony would be lifted tomorrow.’ Procter & Gamble, 356 U.S. at 682, 78 S.Ct. at 986.” Matter of Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079, 1090 n. 14 (7th Cir.1982). In United States v. Sells Engineering, Inc., — U.S. —, 103 S.Ct. 3133, 77 L.Ed.2d 743 (1983), the Supreme Court reiterated the rationale for their traditional recognition of secrecy of grand jury proceedings. “[T]he proper functioning of our grand jury system depends upon the secrecy of grand jury proceedings. In particular, we have noted several distinct interests served by safeguarding the confidentiality of grand jury proceedings. First, if pre-indictment proceedings were made public, many prospective witnesses would be hesitant to come forward voluntarily, knowing that those against whom they testify would be aware of that testimony. Moreover, witnesses who appear before the grand jury would be less likely to testify fully and frankly, as they would be open to retribution as well as to inducements. There also would be the risk that those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment. Finally, by preserving the secrecy of the proceedings, we assure that persons who are accused but exonerated by the grand jury will not be held up to public ridicule.” 103 S.Ct. at 3138 (quoting Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-219, 99 S.Ct. 1667, 1672-1673, 60 L.Ed.2d 156 (1979) (footnotes and citation omitted)). “For all of these reasons, courts have been reluctant to lift unnecessarily the veil of secrecy from the grand jury.” Douglas Oil, 441 U.S. at 220, 99 S.Ct. at 1673. One of the principal reasons for preserving the secrecy of grand jury proceedings is to protect the reputations of both witnesses and those under investigation. See In re Grand Jury Investigation of Cuisinarts, Inc., 665 F.2d 24, 33 (2nd Cir.1981), cert. denied, — U.S. —, 103 S.Ct. 1520, 75 L.Ed. 945 (1983). “Grand jury secrecy, then, is ‘as important for the protection of the innocent" }, { "docid": "11177312", "title": "", "text": "in the criminal context. Specifically, we held that district courts, before requiring disclosure of a reporter’s source in a civil proceeding, must consider “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (8) whether there is a compelling interest in the information.” Id.' at 1139. In LaRouche, we followed the lead of other circuits, including the Fifth Circuit in Miller v. Transamerican Press, Inc., 621 F.2d 721, modified, 628 F.2d 932 (5th Cir.1980), which held that Branzburg did not preclude recognition of a qualified reporter’s privilege or application of the three-part test in civil cases. In such cases, of course, “the public interest in effective criminal law enforcement is absent.” Zerilli v. Smith, 656 F.2d 705, 711-12 (D.C.Cir.1981). b. LaRouche, however, offers no authority for us to recognize a First Amendment reporter’s privilege in this criminal proceeding. Not only does Branzburg preclude this extension, the distinction is critical, and our circuit has already considered and rejected such “a qualified [reporter’s] privilege, grounded on the First Amendment, against being compelled to testify in [a] criminal trial.” In re Shain, 978 F.2d 850, 851 (4th Cir.1992) (emphasis added). The Shain reporters were held in contempt for their refusal to comply with subpoenas to testify in the criminal trial of a former state senator whom they had previously interviewed. At the time, two of our sister circuits had extended the three-part test that had been adopted in civil actions to criminal proceedings, albeit with little to no discussion of the Branzburg opinion. See United States v. Caporale, 806 F.2d 1487, 1503-04 (11th Cir. 1986) (citing Miller, 621 F.2d at 726); United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.1983) (citing Zerilli, 656 F.2d at 713-15). This court in Sham, however, declined to follow that path. We did not recognize a broad privilege nor did we extend the LaRouche three-part test to criminal proceedings. Instead, we followed Branzburg and held that “absent evidence of governmental harassment or bad faith, the reporters have no privilege different from that of any other citizen not to testify about" }, { "docid": "591855", "title": "", "text": "source had been overcome); In re Application of Consumers Union of United States, Inc., 495 F.Supp. 582, 586 (S.D.N.Y.1980) (same). In view of the foregoing, it is concluded that the Second Circuit, based on Branzburg, has recognized a qualified First Amendment privilege, applicable in civil actions and in all phases of a criminal prosecution, that protects reporters from compelled disclosure of confidential sources. See Burke, 700 F.2d at 77. Pursuant to this qualified privilege, the party seeking disclosure must make “a clear and specific showing that the sought information is: [1] highly material and relevant, [2] necessary or critical to the maintenance of the claim, and [3] not obtainable from other available sources.” Id. at 76-77 (quoting In re Petroleum Products, 680 F.2d at 7 (citing Baker, 470 F.2d at 783-85)). The burden to overcome the qualified privilege is diminished where: (1) the party seeking discovery is a criminal defendant, see Gonzales, 194 F.3d at 34 n. 3 (interpreting Cutler, 6 F.3d at 73) or (2) the sought materials are nonconfidential. See id. at 30. The government’s contentions that this qualified privilege should not be applied in the context of a grand jury investigation do not overcome the conclusions set forth above. First, the government argues that Branzburg did not recognize a privilege requiring case-by-case balancing of the interests militating for and against disclosure of a journalists’ sources. The government argues that its position is buttressed by the recently decided In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C.Cir.2005) at 969-70, in which the District of Columbia Circuit flatly rejected the interpretation of Branzburg urged by The Times. See In re Grand Jury Subpoena, Judith Miller, 397 F.3d at 969-70. The District of Columbia Circuit took the position that the First Amendment provides no privilege protecting a reporter from appearing before or providing evidence to a grand jury. As described above, the proper interpretation of Branzburg is an issue that has divided those circuits that have had occasion to consider it, and the interpretation of Branzburg urged by the government is contrary to the view adopted by the" }, { "docid": "8821338", "title": "", "text": "the subpoenaing of confidential information and work product from a newsgath-erer. Four dissenting Justices in Branz-burg discerned at least some protection in the First Amendment for confidences garnered during the course of newsgath-ering ... And Mr. Justice Powell, who joined the Court in Branzburg, wrote separately to emphasize that requests for reporter’s documents should be carefully weighed with due deference to the “vital constitutional and societal interests” at stake. Consequently, I do not believe that the Court has foreclosed news reporters from resisting a subpoena on First Amendment grounds. Id. at 1314-1315, 101 S.Ct. at 6. The Court of Appeals for the Fifth Circuit, citing Branzburg, has ruled that reporters have a qualified privilege to re fuse to disclose confidential sources. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir.), modified on rehearing, 628 F.2d 932 (5th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981). Respondents urge this court to limit that holding to civil cases, as the issue in Miller arose in the context of a suit for libel. However, three years after Miller, the Fifth Circuit unequivocally reaffirmed its earlier view that the first amendment protects reporters from unqualified compelled disclosure of confidential sources. In In re Selcraig, 705 F.2d 789, 792 (1983), the court wrote, We have recognized that the first amendment shields a reporter from being required to disclose the identity of persons who have imparted information to him in confidence. Miller v. Transamerican Press, 621 F.2d 932 (5th Cir.), modified on rehearing, 628 F.2d 932 (5th Cir.1980), cert denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981). Our course was dictated by our careful reading of the plurality and concurring opinions in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The privilege, we held, is not absolute, but qualified. The Selcraig court did not suggest that its holding was limited to civil cases (Sel-craig was a civil rights action for denial of procedural due process by a discharged school district employee). Its ruling was issued in clear, declarative statements. It is" }, { "docid": "8821346", "title": "", "text": "trier of fact. Taylor v. Illinois, 108 S.Ct. at 652. Even though this court believes the state district judge exceeded his authority in this respect, this does not raise a violation of petitioners’ constitutional rights and hence does not afford petitioners an independent ground for habeas corpus relief. With respect to petitioners’ first amendment claims, a party seeking to overcome the reporters’ qualified privilege must show that the information sought is relevant, that alternative means to obtain the information have been exhausted, and that there is a compelling interest in the information. Miller v. Transamerican Press Inc., 621 F.2d at 726. The party who seeks to overcome the privilege bears the burden and must show that the test has been met by substantial evidence. In re Selcraig, 705 F.2d at 792. No assertion was made or could be made that the petitioners were witnesses to the crime or had personally communicated with the defendant. Additionally, the petitioners had averred that they would not be able to recognize their sources, as the sources had been interviewed four months earlier for only ten minutes. The mere hunch that the petitioners may be able to identify persons present at a trial, who may supply the defendant with information that may be useful for impeachment purposes, is not a sufficient basis upon which to compel a witness’ attendance in conformity with the compulsory process provision of the sixth amendment. United States v. Valenzuela-Bernal, 458 U.S. at 866-867, 102 S.Ct. at 3446. The defendant, however, argued that the petitioners’ testimony was necessary because it was exculpatory and could be useful for impeachment purposes. Pri- or to the seating of the jury or the taking of any testimony, the defense sought to have the petitioners view the persons in the court to determine whether present among them were their anonymous sources. As the defendant’s attorneys had earlier indicated, they would require the petitioners to be on call to periodically survey the crowd and, if possible, identify their sources. However, the defendant did not show that exculpatory information was not forthcoming from other sources, such as the" }, { "docid": "3645377", "title": "", "text": "more information from the unredacted files, the EEOC must then make a particularized showing before the court as to its need for further disclosure in any one or more of the files produced. In this respect, the EEOC will be required to make a substantial showing of “particularized need” for relevant information, a burden similar to that imposed on a party seeking disclosure of grand jury materials. See Illinois v. Abbott & Associates, Inc.,-U.S.-, 103 S.Ct. 1356, 75 L.Ed.2d 281 (1983); In re Grand Jury Proceedings, Miller Brewing Co., 687 F.2d 1079 (7th Cir.1982). Cf. McGraw Hill, Inc. v. Arizona, 680 F.2d 5 (2d Cir.), cert, denied, - U.S. -, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982) (disclosure of journalist’s sources improper absent clear and specific showing that information sought was highly material and relevant and unavailable from other sources). Before determining whether to compel disclosure of materials covered by the qualified privilege, the court must apply a balancing test to determine whether the need of the party seeking disclosure outweighs the adverse effect such disclosure would have on the policies underlying the privilege. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223, 99 S.Ct. 1667, 1675, 60 L.Ed.2d 156 (1979); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237,1241, 3 L.Ed.2d 1323 (1959); In re Grand Jury Proceedings, Miller Brewing Co., 687 F.2d at 1090-91. Under the “particularized need” standard, “a party’s need varies in proportion to the degree of access he has to other sources of information he seeks.” United States v. Moten, 582 F.2d 654, 663 (2d Cir.1978). A party must conduct thorough and exhaustive discovery to exploit each and every possible source of information prior to seeking those materials protected by the qualified privilege. “Exploratory” searches will not be condoned. Similarly, the mere fact that certain information may be relevant or useful does not establish a “particularized need” for disclosure of information. United States v. Short, 671 F.2d 178 (6th Cir.), cert, denied, 457 U.S. 1119, 102 S.Ct. 2932, 73 L.Ed.2d 1332 (1982); Miller Brewing, 687 F.2d at 1091." }, { "docid": "6658888", "title": "", "text": "under indictment, to ensure free deliberations, to prevent subornation of perjury, to encourage disclosure by witnesses, and to protect the innocent from unwarranted exposure. See People ex rel. Sears v. Romiti, 50 Ill.2d 51, 277 N.E.2d 705 (1971), cert. denied, 406 U.S. 921, 92 S.Ct. 1778, 32 L.Ed.2d 121 (1972); People v. French, 61 Ill.App.2d 439, 209 N.E.2d 505 (1965). Under federal law, the federal grand juries are clothed with secrecy, Fed. R. Crim.P. 6(e), for precisely the same reasons. See, e. g., Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 218-19, 99 S. Ct. 1667, 1672, 60 L.Ed.2d 156 (1979); United States v. Procter & Gamble Co., 356 U.S. 677, 681-82 n. 6, 78 S.Ct. 983, 985-86 n. 6, 2 L.Ed.2d 1077 (1958). Neither party has suggested that state grand jury materials should not be accorded at least the same measure of protection in federal courts that is accorded to federal grand jury materials. Furthermore, principles of comity dictate that we carefully consider the integral role secrecy plays in the Illinois grand jury system, which is in\" turn crucial to the operation of the criminal justice system of that state. Federal courts have had long experience balancing the strong interest in grand jury secrecy against the need for disclosure in the context of decisions applying Fed.R. Crim.P. 6(e). On the basis of these factors, we conclude that the parties have properly defined the scope of the federal common law privilege to be afforded to these state grand jury materials by reference to that rule. It is well-settled that disclosure of federal grand jury materials to private parties under Rule 6(e) requires a showing that they are needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that the request is structured to cover only the material needed. E. g., Douglas Oil, supra, 441 U.S. at 222, 99 S.Ct. at 1674. The application of this standard accommodates both the continuing need for secrecy of grand jury materials and the need of the party whose" }, { "docid": "591854", "title": "", "text": "(S.D.N.Y. Jul.10, 1995) (stating that pursuant to the First Amendment, “courts in this Circuit have recognized a qualified privilege for journalists to protect confidential sources and other information obtained during the newsgathering process”) (citing von Bulow, 811 F.2d at 142); PPM America, Inc. v. Marriott Corp., 152 F.R.D. 32, 35 (S.D.N.Y.1993) (stating that “on a case-by-case basis, federal courts weigh a reporter’s claim to First Amendment protection from forced disclosure ... ”) (citing Burke, 700 F.2d 70, 76-77); United States v. Sanusi, 813 F.Supp. 149, 154 (E.D.N.Y.1992) (stating that “[t]he First Amendment privilege for newsgathering is not absolute” and can be overcome if the Petroleum Products test is satisfied); United States ex rel. Vuitton et Fils S.A. v. Karen Bags, Inc., 600 F.Supp. 667, 669 (S.D.N.Y.1985) (stating that the Second Circuit has recognized a qualified First Amendment reporter’s privilege extending to both criminal and civil cases) (citing Burke, 700 F.2d at 77); In re Forbes Magazine, 494 F.Supp. 780, 781 (S.D.N.Y.1980) (applying Baker to determine whéther reporter’s First Amendment interest in the non-disclosure of confidential source had been overcome); In re Application of Consumers Union of United States, Inc., 495 F.Supp. 582, 586 (S.D.N.Y.1980) (same). In view of the foregoing, it is concluded that the Second Circuit, based on Branzburg, has recognized a qualified First Amendment privilege, applicable in civil actions and in all phases of a criminal prosecution, that protects reporters from compelled disclosure of confidential sources. See Burke, 700 F.2d at 77. Pursuant to this qualified privilege, the party seeking disclosure must make “a clear and specific showing that the sought information is: [1] highly material and relevant, [2] necessary or critical to the maintenance of the claim, and [3] not obtainable from other available sources.” Id. at 76-77 (quoting In re Petroleum Products, 680 F.2d at 7 (citing Baker, 470 F.2d at 783-85)). The burden to overcome the qualified privilege is diminished where: (1) the party seeking discovery is a criminal defendant, see Gonzales, 194 F.3d at 34 n. 3 (interpreting Cutler, 6 F.3d at 73) or (2) the sought materials are nonconfidential. See id. at 30." }, { "docid": "10559660", "title": "", "text": "S.Ct. 237, 3 L.Ed.2d 231 (1958). A similar recitation of factors which diminish the strength of a reporter’s qualified privilege has prompted one district court to observe that “there are some types of ... testimony as to which the qualified reporter’s privilege is practically insignificant.” Continental Cablevision, 583 F.Supp. at 435. Perhaps most frustrating in a review of the case law dealing with the qualified privilege is the fact that, although many courts recognize that the factors just recited impact on the balancing which a court must undertake to evaluate the propriety of invoking the privilege in a particular instance, not one court has identified how each factor impacts on the standard to be applied when a reporter seeks to invoke his or her privilege. The frequently recited standard in instances of reporter privilege is one well entrenched in the Second Circuit. Specifically, the court in this circuit has held that in order to overcome the privilege a party must demonstrate that “the information sought is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.” United States v. Burke, 700 F.2d at 77; In re Petroleum Antitrust Litigation, 680 F.2d at 7-8; see also Garland, 259 F.2d at 550 (Constitution does not protect a reporter for refusing to testify in a deposition when the question asked goes “to the heart of the plaintiff’s claim”). Another standard stated by a different circuit is that a party wishing to overcome the privilege must establish that the information is relevant, that it cannot be obtained by alternate means, and that there is a compelling interest in gaining the information. Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981). In the Petroleum Products Antitrust case, the Second Circuit instructed that since Justice Powell cast the deciding vote in Branzburg, his reservations are particularly important in understanding the decision. 680 F.2d at 8 n. 9. Therefore, in discerning the proper standard to apply in the instant case the court returns" }, { "docid": "10573396", "title": "", "text": "alternative means; and 3) there is a compelling interest in the information. See id. at 726. Miller concluded that this privilege was justified because the balance of interests favored the press in civil libel cases, unlike the grand jury proceedings considered in Branzburg. See id. at 725, 92 S.Ct. at 2671-72. In In re Selcraig, 705 F.2d 789, 792 (5th Cir.1983), we iterated the existence of the newsreporters’ privilege. We held in Selcmig that “the first amendment shields a reporter from being required to disclose the identity of persons who have imparted information to him in confidence,” but that this privilege can be overcome in civil libel cases. Id. at 792. We disagree with WDSU-TV that Miller controls this case, as the Miller privilege differs from the privilege sought here in two critical respects. First, Miller was a civil matter, while we have before us a criminal prosecution. The Branzburg Court emphasized that the public’s interest in effective law enforcement outweighed the press’s entitlement to a First Amendment privilege against the disclosure of information. See Branzburg, 408 U.S. at 690, 92 S.Ct. at 2661. Because the public has much less of an interest in the outcome of civil litigation, in civil cases like Miller the interests of the press may weigh far more heavily in favor of some sort of privilege. Cf Zerilli v. Smith, 656 F.2d 705, 711 (D.C.Cir.1981) (“Although Branzburg may limit the scope of the reporter’s First Amendment privilege in criminal proceedings, this circuit has previously held that in civil cases, where the public interest in effective criminal law enforcement is absent, that case is not controlling.”). The second important difference between this case and Miller relates to confidentiality. As we have previously noted in the context of testimonial privileges, the existence of a confidential relationship that the law should foster is critical to the establishment of a privilege. See ACLU v. Finch, 638 F.2d 1336, 1344 (5th Cir. Unit A Mar. 1981). Both Miller and Selcraig recognized privileges meant to protect newsreporters from unnecessarily revealing the identities of confidential sources. Here, however, the confidentiality issue is" }, { "docid": "10573395", "title": "", "text": "bear the same burden of producing evidence of criminal wrongdoing as any other citizen. As the Supreme Court has admonished, evidentiary privileges are generally disfavored in the law. See Herbert v. Lando, 441 U.S. 153, 175, 99 S.Ct. 1635, 1648, 60 L.Ed.2d 115 (1979). We see no reason to create a new one here and compelling reasons not to do so. rv. Thus, we find that Branzburg precludes the form of privilege recognized by the district court and urged on us by WDSU-TV. Nevertheless, WDSU-TV contends that our panel need not consider the merits of a new privilege, for we are bound to apply one already established by our court in Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981). In Miller, we held that in civil libel suits, reporters possess a qualified privilege not to disclose the identity of confidential informants. To defeat this privilege, the discoverer must show that: 1) the information is relevant; 2) it cannot be obtained by alternative means; and 3) there is a compelling interest in the information. See id. at 726. Miller concluded that this privilege was justified because the balance of interests favored the press in civil libel cases, unlike the grand jury proceedings considered in Branzburg. See id. at 725, 92 S.Ct. at 2671-72. In In re Selcraig, 705 F.2d 789, 792 (5th Cir.1983), we iterated the existence of the newsreporters’ privilege. We held in Selcmig that “the first amendment shields a reporter from being required to disclose the identity of persons who have imparted information to him in confidence,” but that this privilege can be overcome in civil libel cases. Id. at 792. We disagree with WDSU-TV that Miller controls this case, as the Miller privilege differs from the privilege sought here in two critical respects. First, Miller was a civil matter, while we have before us a criminal prosecution. The Branzburg Court emphasized that the public’s interest in effective law enforcement outweighed the press’s entitlement to a First Amendment privilege against the disclosure of information. See" }, { "docid": "2553564", "title": "", "text": "Inc., 463 U.S. 418, 424, 103 S.Ct. 3133, 3138, 77 L.Ed.2d 743 (1983) (quoting United States v. Proctor & Gamble Co., 356 U.S. 677, 681, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958)). This general rule of grand jury secrecy is codified in Rule 6(e) of the Federal Rules of Criminal Procedure. Rule 6(e) applies “not only to information drawn from transcripts of grand jury proceedings, but also to anything which may reveal what occurred before the grand jury.” In re Grand Jury Matter, 682 F.2d 61, 63 (3d Cir.1982); see Fund for Constitutional Gov’t v. National Archives & Records Serv., 656 F.2d 856, 869 (D.C.Cir.1981) (scope of grand jury secrecy encompasses anything which would reveal “the identities of witnesses or jurors, the substance of testimony, the strategy or direction of the investigation, the deliberations or questions of the jurors, and the like.”) (quoting SEC v. Dresser Indus., Inc., 628 F.2d 1368, 1382 (D.C.Cir.), cert. denied, 449 U.S. 993, 101 S.Ct. 529, 66 L.Ed.2d 289 (1980)). The secrecy of grand jury proceedings is not absolute. Rule 6(e)(3)(C)(i) authorizes disclosure by court order. The party moving for court-ordered disclosure bears a heavy burden of proving to the court that “the material they seek is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that their request is structured to cover only material so needed.” Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222, 99 S.Ct. 1667, 1674, 60 L.Ed.2d 156 (1979) (footnote omitted). Before disclosure of the grand jury transcripts which would corroborate the Defendants’ arguments can be ordered, Defendants must offer evidence of a “substantial likelihood of gross or prejudicial irregularities in the conduct of the grand jury.” United States v. Budzanoski, 462 F.2d 443, 454 (3d Cir.) (citing United States v. Politi, 334 F.Supp. 1318, 1322 (S.D.N.Y.1971); United States v. Dioguardi, 332 F.Supp. 7, 20 (S.D.N.Y.1971)), cert. denied, 409 U.S. 949, 93 S.Ct. 271, 34 L.Ed.2d 220 (1972). Only after the Defendants have met this burden does a court balance the need" }, { "docid": "18233419", "title": "", "text": "in Baker v. F & F Inv., 470 F.2d 778, 785 (2d Cir.1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973)), cert. denied, 531 U.S. 1015, 121 S.Ct. 574, 148 L.Ed.2d 491 (2000); Gonzales v. Nat’l Broad. Co., 194 F.3d 29, 32 (2d Cir.1999) (“This circuit has long recognized the existence of a qualified privilege for journalistic information.”); United States v. Burke, 700 F.2d 70, 76 (2d Cir.) (“When a litigant seeks to subpoena documents that have been prepared by a reporter in connection with a news story, this Circuit’s standard of review ... is well-settled”), cert. denied, 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983); In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7 (2d Cir.) (“The law in this Circuit is clear that to protect the important interests of reporters and the public in preserving the confidentiality of journalists’ sources, disclosure may be ordered only upon a clear and specific showing that the information” meets the three prong test described in the next paragraph.), cert. denied, 459 U.S. 909, 103 S.Ct. 215, 74 L.Ed.2d 171 (1982). The qualified privilege may be overcome only upon a “clear and specific showing” that the information is: “‘[1] highly material and relevant, [2] necessary or critical to the maintenance of the claim, and [3] not obtainable from other available sources.’ ” United States v. Cutler, 6 F.3d 67, 71 (2d Cir.1993) (quoting In re Petroleum Prods. Antitrust Litig., 680 F.2d at 7); accord, e.g., Gonzales v. Nat’l Broad. Co., 194 F.3d at 33 (Referring to the In re Petroleum Prods. Antitrust Litig. language as “language that has since been characterized as the Second Circuit’s ‘test’ for overcoming the journalist’s privilege ... ”); United States v. Burke, 700 F.2d at 76-77; Baker v. F & F Inv., 470 F.2d at 783-85; New York Times Co. v. Gonzales, 382 F.Supp.2d 457, 490 (S.D.N.Y.2005); Persky v. Yeshiva Univ., 2002 WL 31769704 at *3 (referring to the test as a “ ‘stringent test.’ ”). “This demanding burden has been imposed by the courts to ‘reflect a paramount public interest" }, { "docid": "8821345", "title": "", "text": "testimony in one’s favor before the trier of fact. It does not conceive the right to grant investigative services to or force interviews with defense counsel under the guise of a trial subpoena where no otherwise relevant or material testimony can be elicited or where the testimony would be cumulative. See United States v. Fischel, 686 F.2d 1082, 1092 (5th Cir.1982) (no right to interview a witness); see also, Taylor v. Illinois, 484 U.S. 400, 108 S.Ct. 646, 652, 98 L.Ed.2d 798 (1988); Roussel v. Jeane, 842 F.2d 1512, 1515-1516 (5th Cir.1988) (no right to cumulative testimony or to bolster credibility); Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir.1983) (no right to cumulative testimony). Whether the compulsory process provision may be used to compel any citizen to talk with government or defense counsel off the witness stand, or to compel a citizen to remain in the courtroom in the hope that that citizen might recognize another court spectator is questionable at best. The right to compulsory process serves only to compel testimony before the trier of fact. Taylor v. Illinois, 108 S.Ct. at 652. Even though this court believes the state district judge exceeded his authority in this respect, this does not raise a violation of petitioners’ constitutional rights and hence does not afford petitioners an independent ground for habeas corpus relief. With respect to petitioners’ first amendment claims, a party seeking to overcome the reporters’ qualified privilege must show that the information sought is relevant, that alternative means to obtain the information have been exhausted, and that there is a compelling interest in the information. Miller v. Transamerican Press Inc., 621 F.2d at 726. The party who seeks to overcome the privilege bears the burden and must show that the test has been met by substantial evidence. In re Selcraig, 705 F.2d at 792. No assertion was made or could be made that the petitioners were witnesses to the crime or had personally communicated with the defendant. Additionally, the petitioners had averred that they would not be able to recognize their sources, as the sources had been interviewed" }, { "docid": "3645378", "title": "", "text": "disclosure would have on the policies underlying the privilege. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 223, 99 S.Ct. 1667, 1675, 60 L.Ed.2d 156 (1979); Pittsburgh Plate Glass Co. v. United States, 360 U.S. 395, 400, 79 S.Ct. 1237,1241, 3 L.Ed.2d 1323 (1959); In re Grand Jury Proceedings, Miller Brewing Co., 687 F.2d at 1090-91. Under the “particularized need” standard, “a party’s need varies in proportion to the degree of access he has to other sources of information he seeks.” United States v. Moten, 582 F.2d 654, 663 (2d Cir.1978). A party must conduct thorough and exhaustive discovery to exploit each and every possible source of information prior to seeking those materials protected by the qualified privilege. “Exploratory” searches will not be condoned. Similarly, the mere fact that certain information may be relevant or useful does not establish a “particularized need” for disclosure of information. United States v. Short, 671 F.2d 178 (6th Cir.), cert, denied, 457 U.S. 1119, 102 S.Ct. 2932, 73 L.Ed.2d 1332 (1982); Miller Brewing, 687 F.2d at 1091. The party seeking disclosure of the privileged information must show a “compelling necessity” for the specific information requested. Douglas Oil Co., 441 U.S. at 222-23, 99 S.Ct. at 1674-75; United States v. Procter & Gamble Co., 356 U.S. 677, 682-83, 78 S.Ct. 983, 986-87, 2 L.Ed.2d 1077 (1958). In addition to the foregoing general rules regarding “particularized need,” the court will also be required to consider fac tors unique to the context of faculty tenure denial. Once the basis for faculty tenure denial is determined it may be easier for the EEOC to demonstrate a “particularized need” for the identity of one or more evaluating academicians because then the court could determine whether the material sought was relevant to the discrimination claim and unavailable elsewhere. For example, if the University contends that in fact Brookins was denied tenure based on his peer evaluations and the EEOC is able to make a particularized showing that an evaluation was not supported by legitimate non-discriminatory reasons or that an evaluator is likely to have displayed racial animus against" }, { "docid": "16082334", "title": "", "text": "477, 491 (5th Cir.1999); Tiberi v. CIGNA Ins. Co., 40 F.3d 110, 112 (5th Cir.1994). At the outset, the court notes that under both federal and state law, a general rule of secrecy shrouds the proceedings of grand juries. See Fed.R.CRIm.P. 6(e); Douglas Oil Co. of Cal. v. Petrol Stops N.W., 441 U.S. 211, 218-19, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979); Tex.Code Crim. Proc. Ann. art. 20.02 (Vernon Supp.2004); In re 5 Byrd Enters., 980 S.W.2d 542, 543 (TexApp.—Beaumont 1998, no pet.). Even so, both federal and Texas law permit discovery of grand jury material when the party seeking discovery demonstrates a “particularized need” for the material. United States v. Procter & Gamble Co., 356 U.S. 677, 682-83, 78 S.Ct. 983, 2 L.Ed.2d 1077 (1958); accord Fed.R.Crim.P. 6(e)(3)(E)(i); Tex.Code Crim. Proc. Ann. art. 20.02(d); In re 5 Byrd Enters., 980 S.W.2d at 543. A party claiming a particularized need for grand jury material under Rule 6(e) has the burden of showing “that the material [it] seek[s] is needed to avoid a possible injustice in another judicial proceeding, that the need for disclosure is greater than the need for continued secrecy, and that [its] request is structured to cover only material so needed.” Douglas Oil Co., 441 U.S. at 222, 99 S.Ct. 1667. This burden must be met even when the grand jury in question has concluded its operations, as is the case here. Id. While a party can in limited circumstances obtain grand jury material by showing a particularized need, the need for protection of the workings, integrity, and secrecy of grand jury proceedings is a well-established, long-standing public policy. The secrecy of the grand jury proceedings is not some thing that is intruded into except in rare circumstances. In the present case, Shields has not shown a particularized need for compelling the disclosure of grand jury information, much less for compelling the depositions of grand jury members. Shields claims that he needs to depose members of the grand jury to prove that information was withheld from them. He has not, however, put forward any evidence whatsoever showing that" }, { "docid": "10559661", "title": "", "text": "maintenance of the claim, and not obtainable from other available sources.” United States v. Burke, 700 F.2d at 77; In re Petroleum Antitrust Litigation, 680 F.2d at 7-8; see also Garland, 259 F.2d at 550 (Constitution does not protect a reporter for refusing to testify in a deposition when the question asked goes “to the heart of the plaintiff’s claim”). Another standard stated by a different circuit is that a party wishing to overcome the privilege must establish that the information is relevant, that it cannot be obtained by alternate means, and that there is a compelling interest in gaining the information. Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981). In the Petroleum Products Antitrust case, the Second Circuit instructed that since Justice Powell cast the deciding vote in Branzburg, his reservations are particularly important in understanding the decision. 680 F.2d at 8 n. 9. Therefore, in discerning the proper standard to apply in the instant case the court returns to Justice Powell’s concurrence in Branzburg. He outlined the balancing test as follows: “[t]he asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” 408 U.S. at 710, 92 S.Ct. at 2671. Accordingly, it is this court’s opinion that the test to be employed should be flexible and not gauged by the relatively unforgiving test of whether the material sought is highly material, critical, and not available from alternate sources. Solargen Elec. Motor Car Corp. v. American Motors Corp., 506 F.Supp. 546, 552 (N.D.N.Y.1981) (Munson, J.). In order to discern the appropriate test for the situation at bar, the court will review some of the factors previously outlined. First, this is a criminal case. Second, the testimony sought by the government does not involve confidential sources or materials. Third, the government only seeks reporters’ testimony and not their notes. Fourth, the government has proposed limited questioning. Finally, the" }, { "docid": "22056157", "title": "", "text": "government is required to keep matters occurring in grand jury proceedings secret. See Fed.R. Crim.P. 6(e)(2). Disclosure otherwise prohibited by Rule 6(e)(2) may, however, be made when so ordered by a court in a judicial proceeding, see Fed.R.Crim.P. 6(e)(3)(C)(i), and within the following framework, the court has “substantial discretion” in dealing with Rule 6(e) applications. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 222-23, 99 S.Ct. 1667, 1674-75, 60 L.Ed.2d 156 (1979) (“Douglas Oil’’); see In re Federal Grand Jury Proceedings, 760 F.2d 436, 439 (2d Cir.1985). A private party requesting disclosure of grand jury material pursuant to Rule 6(e)(3)(C)(i) has the burden of demonstrating particularized need, i.e., that (a) the material sought is needed to avoid a possible injustice, (b) the need for disclosure is greater than the need for secrecy, and (c) the request is structured to cover only materia] so needed. Douglas Oil, 441 U.S. at 222-23, 99 S.Ct. at 1674-75. The burden is not easily met. Requests for wholesale disclosures should generally be denied, especially in a civil case. See, e.g., United States v. Procter & Gamble, 356 U.S. 677, 683, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958); Baker v. United States Steel Corp., 492 F.2d 1074, 1079 (2d Cir.1974) (no authority for releasing grand jury transcripts “to permit general discovery in a civil case”) (emphasis in original). And the assertion that Rule 6(e) disclosure will save a civil litigant time and expense is insufficient to show the requisite need where the evidence can be obtained through ordinary discovery or other routine avenues of investigation. See United States v. Sells Engineering, Inc., 463 U.S. 418, 431, 103 S.Ct. 3133, 3141, 77 L.Ed.2d 743 (1983); United States v. Sobotka, 623 F.2d 764, 768 & n. 5 (2d Cir.1980); Baker v. United States Steel Corp., 492 F.2d at 1079. Factors that militate strongly against disclosure include an ongoing employment relationship between the grand jury witness and the target of the investigation, for the potential for retaliation against employee witnesses heightens the need for secrecy, see Douglas Oil, 441 U.S. at 222, 99 S.Ct. at 1674," } ]

[ { "docid": "21633595", "title": "", "text": "Ante, at 356-356. Wal-Mart’s delegation of discretion over pay and promotions is a policy uniform throughout all stores. The very nature of discretion is that people will exercise it in various ways. A system of delegated discretion, Watson held, is a practice actionable under Title YII when it produces discriminatory outcomes. 487 U. S., at 990-991; see supra, at 373-374. A finding that Wal-Mart’s pay and promotions practices in fact violate the law would be the first step in the usual order of proof for plaintiffs seeking individual remedies for companywide discrimination. Teamsters v. United States, 431 U. S. 324, 359 (1977); see Albemarle Paper Co. v. Moody, 422 U. S. 405, 415-423 (1975). That each individual employee’s unique circumstances will ultimately determine whether she is entitled to backpay or damages, § 2000e-5(g)(2)(A) (barring backpay if a plaintiff “was refused . . . advancement ... for any reason other than discrimination”), should not factor into the Rule 23(a)(2) determination. * * * The Court errs in importing a “dissimilarities” notion suited to Rule 23(b)(3) into the Rule 23(a) commonality inquiry. I therefore cannot join Part II of the Court’s opinion. The plaintiffs requested Rule 23(b)(3) certification as an alternative, should their request for (b)(2) certification fail. Plaintiffs’ Motion for Class Certification in No. 3:01-cv-02252-CRB (ND Cal.), Doc. 99, p. 55. Rule 23(a) lists three other threshold requirements for class-action certification: “(1) the class is so numerous that joinder of all members is impracticable”; “(3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” The numerosity requirement is clearly met and Wal-Mart does not contend otherwise. As the Court does not reach the typicality and adequacy requirements, ante, at 349, n. 5,1 will not discuss them either, but will simply record my agreement with the District Court’s resolution of those issues. The Court suggests Rule 23(a)(2) must mean more than it says. See ante, at 349-350. If the word “questions” were taken literally, the majority asserts, plaintiffs" } ]

[ { "docid": "8638203", "title": "", "text": "considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied. Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S.-, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013) (Ginsburg, J.). To reconcile these two directives, the Court will find facts for the purposes of class certification by the preponderance of the evidence, but will allow the parties to challenge these findings during the subsequent merits stage of this case. This approach is analogous to preliminary injunction practice, and, although the Tenth Circuit has not endorsed it, other circuits have. See Abbott v. Lockheed Martin Corp., 725 F.3d 803, 810 (7th Cir.2013); In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 313 (3d Cir.2008); Gariety v. Grant Thornton, LLP, 368 F.3d 356, 366 (4th Cir.2004). Because of the res judicata effect a class judgment has on absent parties, a court may not simply accept the named parties’ stipulation that class certification is appropriate, but must conduct its own independent rule 23 analysis. See Amchem Prods., Inc. v. Windsor, 521 U.S. at 620-22, 117 S.Ct. 2231. In taking evidence on the question of class certification, the Federal Rules of Evidence apply, albeit in a relaxed fashion. 1. Requirements Applicable to All Classes: Rule 23(a). 2. All classes must satisfy the prerequisites of rule 23(a): (a) Prerequisites. One or more members of a class may sue or be sued as representative parties on behalf of all members only if: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). “A party seeking to certify a class is required to show ... that all the requirements of [rule 23(a) ] are clearly met.” Reed v. Bowen, 849 F.2d 1307, 1309 (10th Cir.1988). “Although the party seeking to certify a" }, { "docid": "531333", "title": "", "text": "court must determine whether the proposed class satisfies the requirements of Federal Rule of Civil Procedure 23, with one exception: the court does not need to consider whether ‘the case, if tried, would present intractable management problems[,]’ ” Alvarez v. Keystone Plus Constr. Corp., 303 F.R.D. 152, 159 (D.D.C. 2014) (quoting Amchem, 521 U.S. at 620, 117 S.Ct. 2231). That lone exception aside, the remaining class-certification requirements “demand undiluted, even heightened, attention in the settlement context.” Amchem, 521 U.S. at 620, 117 S.Ct. 2231. A court may certify a class under Rule 23 only if it satisfies all of the prerequisites set forth in Rule 23(a) and at least one. of the three requirements of Rule 23(b). See Comcast Corp. v. Behrend, 569 U.S. 27, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). Under Rule 23(a), the party seeking class certification must demonstrate that: “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of'the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed. R. Civ. P. 23(a). Courts generally refer to these prerequisites as “numerosity, commonality, typicality, and adequácy of representation^]” Amgen v. Conn. Retirement Plans & Trust Funds, 568 U.S. 455, 460, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013). As relevant here, in order to satisfy the commonality requirement, “[class members’] claims must depend .upon a common contention[,]” and “[t]hat common contention ... must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Wal-Mart, 564 U.S. at 350, 131 S.Ct 2541. Rule 23(b) lays out different requirements for three different “types of class actions.” Fed. R. Civ. P. 23(b). Plaintiffs here seek certification under Rules 23(b)(2) and 23(b)(3), relying on Rule 23(b)(2) for purposes of their requested" }, { "docid": "19458931", "title": "", "text": "23(b)(3) was satisfied. II. Predominance Langan attempted to certify a class under Rule 23(b)(3), the provision that allows for the common \"opt-out\" class action, a class action designed to bind all class members except those who affirmatively choose to be excluded. See Amchem , 521 U.S. at 614-15, 117 S.Ct. 2231 ; see also Scott Dodson, An Opt-In Option for Class Actions , 115 Mich. L. Rev. 171, 177-79 (2016). To ensure that binding absent class members is fair, see Comcast Corp. v. Behrend , 569 U.S. 27, 34, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013), before a district court may certify a class under Rule 23(b)(3) the party seeking certification must show that \"questions of law or fact common to class members predominate over any questions affecting only individual members.\" Fed. R. Civ. P. 23(b)(3). This predominance requirement \"tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.\" Mazzei v. Money Store , 829 F.3d 260, 272 (2d Cir. 2016) (internal quotation marks omitted). The predominance requirement is satisfied if \"resolution of some of the legal or factual questions that qualify each class member's case as a genuine controversy can be achieved through generalized proof,\" and \"these particular issues are more substantial than the issues subject only to individualized proof.\" Roach v. T.L. Cannon Corp. , 778 F.3d 401, 405 (2d Cir. 2015). Variations in state laws do not necessarily prevent a class from satisfying the predominance requirement. See In re U.S. Foodservice , 729 F.3d at 127 (holding that there was no predominance problem with a putative class action brought under the state contract law of various states where all of the jurisdictions had adopted the Uniform Commercial Code). As with all Rule 23 requirements, the party seeking certification has the ultimate burden to demonstrate that any variations in relevant state laws do not predominate over the similarities. See Wal-Mart , 564 U.S. at 350, 131 S.Ct. 2541 ; In re U.S. Foodservice , 729 F.3d at 127 (finding no predominance issue where defendant had alleged but not proffered evidence to support its claim that variation" }, { "docid": "17502010", "title": "", "text": "maintain a class action, the class sought to be represented must be adequately defined and clearly ascertainable.’” Vietnam Veterans of Am. v. C.I.A., 288 F.R.D. 192, 211 (N.D.Cal.2012) (quoting DeBremcecker v. Short, 433 F.2d 733, 734 (5th Cir.1970)). Rule 23(a) requires that plaintiffs demonstrate numerosity, commonality, typicality and adequacy of representation in order to maintain a class. Mazza, 666 F.3d at 588. That is, the class must be so numerous that joinder of all members individually is “impracticable;” there must be questions of law or fact common to the class; the claims or defenses of the class representative must be typical of the claims or defenses of the class; and the class representative must be able to protect fairly and adequately the interests of all members of the class. See Fed.R.Civ.P. 23(a)(l)-(4). If the class is ascertainable and all four prerequisites of Rule 23(a) are satisfied, the court must also find that plaintiffs have “sa-tisf[ied] through evidentiary proof’ at least one of the three subsections of Rule 23(b). Comcast, 133 S.Ct. at 1432. Rule 23(b)(1) requires a showing that there is a risk of substantial prejudice or inconsistent adjudications from separate actions, while Rule 23(b)(2) requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(1), (2). Rule 23(b)(3), under which plaintiffs seek certification in the present ease, requires a showing that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). “[A] court’s class-certification analysis ... may ‘entail some overlap with the merits of the plaintiff’s underlying claim.’” Amgen Inc. v. Conn. Ret. Plans and Trust Funds, — U.S.-, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (quoting Dukes, 131 S.Ct. at 2551). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Id." }, { "docid": "22490516", "title": "", "text": "The recipient may make a request to the sender not to send any future faxes and failure to comply with the request within 30 days is unlawful. R. 1 at 12; R. 68-7 at 9. Practice Management alleges that this opt-out notice was deficient (although its complaint does not specify why). R. 1 ¶ 19. ProFax retained an opt-out list associated with defendants' account, which is comprised of 935 fax numbers. R. 153 at 4; R. 161 at 3. Standard To be certified, a putative class must satisfy the four prerequisites of Federal Rule of Civil Procedure 23(a) : numerosity, commonality, typicality, and adequacy of representation. Messner v. Northshore Univ. HealthSystem, 669 F.3d 802, 811 (7th Cir. 2012). The action also must satisfy at least one of the three subsections of Rule 23(b). Id. Here, plaintiffs seek certification under Rule 23(b)(3), which requires a finding that \"questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy.\" \"Plaintiffs bear the burden of showing that a proposed class satisfies the Rule 23 requirements.\" Messner , 669 F.3d at 811. \"The Rule does not set forth a mere pleading standard\"; rather, the plaintiff must satisfy Rule 23\"through evidentiary proof.\" Comcast Corp. v. Behrend, 569 U.S. 27, 33, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). \"It is sufficient if each disputed requirement has been proven by a preponderance of the evidence.\" Messner , 669 F.3d at 811. \"Such an analysis will frequently entail 'overlap with the merits of the plaintiff's underlying claim.' \" Comcast , 569 U.S. at 33-34, 133 S.Ct. 1426 (quoting Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 351, 131 S.Ct. 2541, 180 L.Ed.2d 374 (2011) ). But \"[m]erits questions may be considered ... only to the extent ... that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.\" Amgen Inc. v. Conn. Ret. Plans & Trust Funds, 568 U.S. 455, 466, 133 S.Ct. 1184, 185 L.Ed.2d 308" }, { "docid": "14981742", "title": "", "text": "is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). Courts must perform a “rigorous analysis” of these prerequisities before concluding that Rule 23(a) is satisfied. Wal-Mart, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at 161, 102 S.Ct. 2364). The analysis may “entail some overlap with the merits of the plaintiffs underlying claim,” id., but Rule 23 “grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013). Instead, “[m]erits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. Once these prerequisites are satisfied, the proposed class must meet at least one of the three requirements set forth in Rule 23(b). A. Commute-Time Claim Although Rule 23(a)(2) refers to common “questions of law or fact” in the plural, even a single common question will do. Wal-Mart, 131 S.Ct. at 2556. But because “ ‘[a]ny competently crafted class complaint literally raises common questions,’ ” id. at 2551 (alteration in original) (quoting Richard A. Nagareda, Class Certification in the Age of Aggregate Proof, 84 N.Y.U. L. Rev. 97, 131-32 (2009)), courts should look for a “common contention” in determining whether putative class members’ claims can be litigated together. Id. “That common contention, moreover, must be of such a nature that it is capable of classwide resolution — which means that determination of its truth or falsity will resolve an issue that is central to the validity of each one of the claims in one stroke.” Id. Thus, it is not just the common contention, but the answer to that contention, that is important: “What matters to class certification ... is not the raising of" }, { "docid": "14981741", "title": "", "text": "v. Mowbray, 208 F.3d 288, 295 (1st Cir.2000)). DISCUSSION I. Class Certification Alcantar contends that the district court improperly reached the merits of his claims in denying class certification under Rule 23(a)(2) and Rule 23(b)(3). “The class action is ‘an exception to the usual rule that litigation is conducted by and on behalf of the individual named parties only.’ ” Wal-Mart Stores, Inc. v. Dukes,-U.S., 131 S.Ct. 2541, 2550, 180 L.Ed.2d 374 (2011) (quoting Califano v. Yamasaki 442 U.S. 682, 700-01, 99 S.Ct. 2545, 61 L.Ed.2d 176 (1979)). This exdeption is justified where the class members and the class representative possess the same interest and have suffered the same injury. Id. Rule 23(a) seeks to ensure that the class claims are limited to those “ ‘fairly encompassed by the named plaintiffs claims.’ ” Id. (quoting Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 156, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). To that end, Rule 23(a) conditions certification on a demonstration that (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class. Fed.R.Civ.P. 23(a). Courts must perform a “rigorous analysis” of these prerequisities before concluding that Rule 23(a) is satisfied. Wal-Mart, 131 S.Ct. at 2551 (quoting Falcon, 457 U.S. at 161, 102 S.Ct. 2364). The analysis may “entail some overlap with the merits of the plaintiffs underlying claim,” id., but Rule 23 “grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013). Instead, “[m]erits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. Once these prerequisites are satisfied, the proposed class" }, { "docid": "8501306", "title": "", "text": "the class.” Fed.R.Civ.P. 23(a). Courts refer to these four requirements, which must be satisfied to maintain a class action, as “numerosity, commonality, typicality and adequacy of representation.” Mazza v. Am. Honda, Motor Co., 666 F.3d 581, 588 (9th Cir.2012). In addition to meeting the requirements of Rule 23(a), the Court must also find that Plaintiffs have satisfied “through evidentiary proof’ one of the three subsections of Rule 23(b). Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). The Court can certify a Rule 23(b)(2) class if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). “[A] court’s class-certification analysis must be ‘rigorous’ and may ‘entail some overlap with the merits of the plaintiffs underlying claim.’ ” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (quoting Wal-Mart Stores, Inc. v. Dukes, — U.S.-, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011)); see also Mazza, 666 F.3d at 588 (“ ‘Before certifying a class, the trial court must conduct a ‘rigorous analysis’ to determine whether the party seeking certification has met the prerequisites of Rule 23.’ ” (quoting Zinser v. Accufix Research Inst., Inc., 253 F.3d 1180, 1186, amended by 273 F.3d 1266 (9th Cir.2001))). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Amgen, 133 S.Ct. at 1194-95. “Merits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. Within the framework of Rule 23, the Court ultimately has broad discretion over whether to certify a class. Zin-ser, 253 F.3d at 1186. III. DISCUSSION Plaintiffs move to certify a nationwide class of persons who are not Yahoo Mail subscribers who have sent emails to or received emails from a Yahoo Mail subscriber from" }, { "docid": "11592429", "title": "", "text": "See Halliburton Co. v. Erica P. John Fund, Inc., — U.S. -, 134 S.Ct. 2398, 2412, 189 L.Ed.2d 339 (2014). He “/must affirmatively demonstrate his compliance’ with Rule 23” by proving that the requirements are “in fact” satisfied. Comcast, 133 S.Ct. at 1432 (quoting Wal-Mart, 131 S.Ct. at 2551). And the district court must conduct a “rigorous analysis” to determine whether the movant carried his burden, which “will frequently entail ‘overlap with the merits of the plaintiffs underlying claim.’ ” Id. (quoting Wal-Mart, 131 S.Ct. at 2551). Of course, the district court can consider the merits “only” to the extent “they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1195, 185 L.Ed.2d 308 (2013). But if a question of fact or law is relevant to that determination, then the district court fias a duty to actually decide it and not accept it as true or construe it in anyone’s favor, See Comcast, 133 S.Ct. at 1432-33; Szabo v. Bridgeport Machs., Inc., 249 F.3d 672, 675-76 (7th Cir.2001); Gariety v. Grant Thornton, LLP, 368 F.3d 356, 365-66 (4th Cir.2004). The district court erred when it stated the opposite. Brown and Vogler argue that these-misstatements by the district court are harmless because they played no role in its actual analysis, but the. harmfulness of an error does not matter when we are going to remand anyway. See United States v. Molina-Guevara, 96, F.3d 698, 705 (3d Cir.1996). And here, we must vacate the class certification because the district court, abused its discretion in assessing predominance, as we will explain below. On remand, we are confident that the district court will apply the correct standard for class certification. B. The District Court Abused Its Discretion in Assessing Predominance. Electrolux contends that the district court abused its discretion when it decided that “the questions of law or fact common to class members predominate over any questions affecting only individual members,” Fed.R.Civ.P. 23(b)(3). To determine whether the requirement of predominance is satisfied, a district" }, { "docid": "15909920", "title": "", "text": "members as: All consumers in the Commonwealth of Pennsylvania to whom, from March 5, 2012, and continuing through the resolution of this action, Defendants sent a letter substantially in the form attached to the Amended Complaint as Exhibit A, in an attempt to collect a consumer debt allegedly owed to Verizon Pennsylvania, Inc. LEGAL STANDARD Rule 23 governs the certification of class actions in federal court. A plaintiff seeking class certification must satisfy all requirements of Rule 23(a) and at least one of the requirements of Rule 23(b). Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S.-, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013); see also Marcus v. BMW of North America, 687 F.3d 583, 590 (3d Cir. 2012). “Rule 23 does not set forth a mere pleading standard. A party seeking class certification must affirmatively demonstrate his compliance with the Rule.” Wal-Mart Stores, Inc. v. Dukes, — U.S. -, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011). A district court’s analysis of a motion for class certification “must be ‘rigorous’ and may ‘entail some overlap with the merits of the plaintiffs underlying claim.’” Amgen Inc., 133 S.Ct. at 1194 (quoting Dukes, 131 S.Ct. at 2551). However, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent— but only to the extent—that they are relevant to determining whether Rule 23 prerequisites for class certification are satisfied.” Id. at 1194-95. “Factual determinations necessary to make Rule 23 findings must be made by a preponderance of the evidence.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir.2008). To satisfy the Rule 23(a) requirements: (1) the class must be “so numerous that joinder of all members is impracticable” (numerosity); (2) there must be “questions of law or fact common to the class” (commonality); (3) “the claims or defenses of the representative parties” must be “typical of the claims or defenses of the class” (typicality); and (4) the named plaintiffs must “fairly and adequately protect the interests of the class” (adequacy of representation, or" }, { "docid": "19321384", "title": "", "text": "the flexibility to address problems with a certified class as they arise, including the ability to decertify.” United Steel, Paper & Forestry, Rubber, Mfg. Energy, Allied Indust. & Serv. Workers Int’l Union v. ConocoPhillips Co., 593 F.3d 802, 809 (9th Cir.2010). The party seeking decertification has the burden of establishing that the requirements of FRCP 23 have not been met. See Gonzales v. Arrow Fin. Servs. LLC, 489 F.Supp.2d 1140, 1153 (S.D.Cal.2007); Slaven v. BP Am., Inc., 190 F.R.D. 649, 651 (C.D.Cal.2000). This burden is substantial, as “doubts re garding the propriety of class certification should be resolved in favor of certification.” Gonzales, 489 F.Supp.2d at 1154. FRCP 23(a) requires that the party moving for class certification show the following prerequisites have been met: (1) numerosity; (2) commonality; (3) typicality; and (4) adequacy of representation. Fed.R.Civ.P. 23(a); see Staton v. Boeing Co., 327 F.3d 938, 953 (9th Cir.2003). “[AJctual, not presumed, conformance with Rule 23(a) remains ... indispensable.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). The trial court is expected to engage in a “rigorous analysis” to determine whether the prerequisites of Rule 23(a) have been satisfied. Wal-Mart Stores v. Dukes, — U.S.-, 131 S.Ct. 2541, 2551, 180 L.Ed.2d 374 (2011) (quoting Falcon, 457 U.S. at 161, 102 S.Ct. 2364). This rigorous analysis will often “overlap with the merits of the plaintiffs underlying claim. That cannot be helped.” Wal-Mart, 131 S.Ct. at 2551. FRCP 23(b)(3) requires a showing that questions of law or fact common to the class “predominate” over questions affecting the individual members, and that, on balance, a class action is superior to other methods available for adjudication. See Fed.R.Civ.P. 23(b)(3). In addition to the express requirements of Rule 23, “there are implied prerequisites to class certification that the class must be sufficiently definite and ascertainable.” Galvan v. KDI Distrib. Inc., No. SACV 08-0999-JVS (ANx), 2011 WL 5116585, at *3 (C.D.Cal. Oct. 25, 2011). B. Analysis Defendants contend generally that “new facts and law have arisen, requiring reassessment of the certification order and decertification of the class.”" }, { "docid": "17502011", "title": "", "text": "requires a showing that there is a risk of substantial prejudice or inconsistent adjudications from separate actions, while Rule 23(b)(2) requires a showing that “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(1), (2). Rule 23(b)(3), under which plaintiffs seek certification in the present ease, requires a showing that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). “[A] court’s class-certification analysis ... may ‘entail some overlap with the merits of the plaintiff’s underlying claim.’” Amgen Inc. v. Conn. Ret. Plans and Trust Funds, — U.S.-, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (quoting Dukes, 131 S.Ct. at 2551). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” Id. at 1194-95. “Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Id. at 1195. If it concludes that the moving party has met its burden of proof, then the court has broad discretion to certify the class. See Zinser v. Accufix Research Institute, Inc., 253 F.3d 1180, 1186 (9th Cir.2001), amended by 273 F.3d 1266 (9th Cir,2001). B. Plaintiffs’ Motion Plaintiffs contend that class certification is proper in this case because each of the members of the class suffered the same type of injury. They argue that each of the class members is a Blue Shield participant or beneficiary in an ERISA plan who was treated in a residential treatment center (“RTC”) or who was financially responsible for payment of RTC treatment, and whose claims for RTC treatment were routinely denied by Blue Shield. Plaintiffs assert that the proposed class meets all the requirements of Rule 23. They contend that the proposed class is ascertainable, and that" }, { "docid": "13374402", "title": "", "text": "a single injunction or declaratory judgment would provide relief to each member of the class. It does not authorize class certification when each individual class member would be entitled to a different injunction or declaratory judgment against the defendant.” Id. at 2557 (emphasis in original). The Court explained that “the key to the (b)(2) class is the indivisible nature of the injunctive or declaratory remedy warranted — the notion that the conduct is such that it can be enjoined or declared unlawful only as to all of the class members or as to none of them.” Id. (internal quotation marks omitted). The Court noted that the district court must conduct a “rigorous” class-certification analysis, id. at 2551 (quoting Gen. Tel. Co. of. Sw. v. Falcon, 457 U.S. 147, 160, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982), and Coopers & Lybrand v. Livesay, 437 U.S. 463, 469, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)), which' may “entail some overlap with the merits of the plaintiffs underlying claim,” id. The Court has since cautioned that “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent — but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194-95, 185 L.Ed.2d 308 (2013); see also Comcast Corp. v. Behrend, 569 U.S. -, 133 S.Ct. 1426, 185 L.Ed.2d 515 (2013). The District contends that the class certified by the district court lacks commonality as a matter of law, and that this court should vacate the certification, liability, and relief rulings. Not to make too subtle a point, the District’s position is that “[a]l-though loosely focused on one general ‘child find’ system, the certified class reaches across different legal requirements applicable to different actors in different agencies at different points of time to children with different disabilities in different factual settings.” Appellant’s Br. at 28. It views the certified class to “eover[ ] failures in" }, { "docid": "19317433", "title": "", "text": "also Gen. Tel. Co. of Southwest v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). While the district court’s class certification analysis “may ‘entail some overlap with the merits of the plaintiffs underlying claim,’ Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage.” See Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. —, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (citations omitted). Rather, “[m]erits questions may be considered to the extent— but only to the extent — that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” See id. “The burden of proof to establish the propriety of class certification rests with the advocate of the class.” Valley Drug Co., 350 F.3d at 1187. “Under Rule 23(a), every putative class first must satisfy the prerequisites of ‘numerosity, commonality, typicality, and adequacy of representation.’ ” Vega v. T-Mobile USA, Inc., 564 F.3d 1256, 1265 (11th Cir.2009). Rule 23(a) is satisfied only where: (1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class Fed.R.Civ.P. 23(a). Where certification is sought under Rule 23(b)(3), as it is here, the plaintiff must show, in addition to the four requirements of Rule 23(a), that “the questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” See Fed. R.Civ.P. 23(b)(3); Vega, 564 F.3d at 1265. Legal Analysis I. Standing Whether the named plaintiff has standing to sue is a threshold question in any class action case; thus, “any analysis of class certification must begin with the issue of standing.” See Griffin v. Dugger, 823 F.2d 1476, 1482 (11th Cir.1987); Prado-Steiman v. Bush," }, { "docid": "15684257", "title": "", "text": "23(a)’s four requirements are satisfied, they must then show that at least one of the requirements set forth in Rule 23(b) is met. Vega v. T-Mobile USA Inc., 564 F.3d 1256, 1265 (11th Cir.2009). Plaintiffs rely on Rule 23(b)(3), which provides in pertinent part that a class action may be maintained where it is shown that “questions of law or fact common to class members predominate over any questions affecting only individual members, and that a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” In addition to these express requirements of Rule 23, there is an implicit but firm requirement that Plaintiffs must satisfy. “Before a district court may grant a motion for class certification, a plaintiff seeking to represent a proposed class must establish that the proposed class is adequately defined and clearly ascertainable.” Little v. T-Mobile USA Inc., 691 F.3d 1302, 1304 (11th Cir. 2012) (internal punctuation omitted). Courts must perform a “rigorous analysis” to ensure that Rule 23’s requirements are satisfied before certifying a class. Gen. Tel. Co. v. Falcon, 457 U.S. 147, 161, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982). This is so even where some of the requirements are not in dispute, Valley Drug Co. v. Geneva Pharm., Inc., 350 F.3d 1181, 1188 (11th Cir. 2003), or where it requires the Court to decide disputed questions of fact that bear on the inquiry, Brown v. Electrolux Home Prods., Inc., 817 F.3d 1225, 1233-34 (11th Cir.2016). See also Dukes, 564 U.S. at 350, 131 S.Ct. 2541 (“Rule 23 does not set forth a mere pleading standard.”); Comcast Corp. v. Behrend, — U.S. —, 133 S.Ct. 1426, 1432-33, 185 L.Ed.2d 515 (2013) (reversing certification where district court abstained from considering certain arguments that pertained to both Rule 23 and the merits determination). Nevertheless, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage,” and thus merits questions may be considered “only to the extent” they pertain to the Rule 23 analysis. Amgen Inc. v. Conn. Retirement Plans & Tr. Funds, — U.S. —, 133" }, { "docid": "15908535", "title": "", "text": "fact sufficiently numerous parties, common questions of law or fact, etc.” Id. “[CJertifieation is proper only if ‘the trial court is satisfied, after a rigorous analysis, that the prerequisites of Rule 23(a) have been satisfied.’ ” Id. (internal quotations omitted); see also Falcon, 457 U.S. at 160, 102 S.Ct. 2364 (“actual, not presumed, conformance with Rule 23(a) remains ... indispensable”). “Frequently that ‘rigorous analysis’ will entail some overlap with the merits of the plaintiffs underlying claim” because “ ‘the class determination generally involves considerations that are enmeshed in the factual and legal issues comprising the plaintiffs cause of action.’” Wal-Mart, 131 S.Ct. at 2551-52 (quoting Falcon, 457 U.S. at 160, 102 S.Ct. 2364). However, “ ‘Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent—but only to the extent—that they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.’ ” DL v. District of Columbia, 713 F.3d 120, 125-26 (D.C.Cir.2013) (quoting Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 185 L.Ed.2d 308 (2013)). Ultimately, “[a] district court exercises broad discretion in deciding whether to permit a ease to proceed as a class action.” Hartman v. Duffey, 19 F.3d 1459, 1471 (D.C.Cir.1994) (trial courts are “uniquely well situated to make class certification decisions” as they “have the primary responsibility of ensuring the orderly management of litigation and that the purpose of class actions lies in advancing] the efficiency and economy of multi-party litigation” (internal quotations omitted)). B. RULE 23 REQUIREMENTS 1. Numerosity (Rule 23(a)(1)) The first requirement for a class action is that “the class is so numerous that joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). “There is no specified or minimum number of plaintiffs needed to maintain a class action.” Pashby v. Cansler, 279 F.R.D. 347, 353 (E.D.N.C.2011). Here, the parties agree that a class of 40 or more is sufficiently numerous (CC Mot. 19; CC Opp. 33), but the District argues that plaintiffs have failed to meet their burden" }, { "docid": "17825909", "title": "", "text": "existence of common questions of law or fact, the proponent of a putative class must also establish that these questions “predominate over any questions affecting only individual members.” Fed.R.Civ.P. 23(b)(3). “The predominance analysis under Rule 23(b)(3) focuses on ‘the relationship between the common and individual issues’ in the case and ‘tests whether proposed classes are sufficiently cohesive to warrant adjudication by representation.’ ” Wang v. Chinese Daily News, Inc., 737 F.3d 538, 545 (9th Cir.2013) (quoting Hanlon v. Chrysler Carp., 150 F.3d 1011, 1022 (9th Cir.1998)). Some variation is permitted among individual plaintiffs’ claims, Abdullah v. U.S. Sec. Assocs., Inc., 731 F.3d 952, 963 (9th Cir.2013), but Rule 23(b)(3) is “more demanding than Rule 23(a),” Comcast, 133 S.Ct. at 1432. Courts are thus required “to take a ‘close look’ at whether common questions predominate over individual ones,” id. (citation omitted), “begin[ning] ... with the elements of the underlying cause of action,” Erica P. John Fund, Inc., 131 S.Ct. at 2184. Of course, plaintiffs need not show at the certification threshold that predominant questions will be answered in their favor. Amgen, Inc. v. Conn. Ret. Plans & Trust Funds, — U.S.-, 133 S.Ct. 1184, 1196, 185 L.Ed.2d 308 (2013). The court considers the merits only to the extent required by Rule 23. Id. at 1194-95 (citing Wal-Mart, 131 S.Ct. at 2552 n. 6). To prevail on a motion to certify a class under Rule 23(b)(3), the party seeking certification must show: “(1) that the existence of individual injury resulting from the alleged ... violation ... [is] capable of proof at trial through evidence that is common to the class rather than individual to its members; and (2) that the damages resulting from that injury [are] measurable on a class-wide basis through use of a common methodology.” Comcast, 133 S.Ct. at 1430 (citation and internal quotation marks omitted). “Rule 23(b)(3), however, does not require a plaintiff ... to prove that each elemen[t] of [her] claim [is] susceptible to elasswide proof.” Amgen, 133 S.Ct. at 1197 (emphasis and alterations in Amgen) (citation and internal quotation marks omitted). Similarly, because “ ‘individualized monetary claims" }, { "docid": "8501305", "title": "", "text": "complaint, and Yahoo filed its answer to Plaintiffs’ complaint on August 26, 2014. ECF No. 53. On February 5, 2015, Plaintiffs filed the instant motion for class certification. ECF No. 60. On March 12, 2015, Yahoo filed its opposition. (“Opp.”), ECF No. 77. On April 9, 2015, Plaintiffs filed their reply. (“Reply”), ECF No. 89. II. LEGAL STANDARD Federal Rule of Civil Procedure 23, which governs class certification, has two sets of distinct requirements that Plaintiffs must meet before the Court may certify a class. Plaintiffs must meet all of the requirements of Rule 23(a) and must satisfy at least one of the prongs of Rule 23(b). Under Rule 23(a), the Court may certify a class only where “(1) the class is so numerous that joinder of all members is impracticable; (2) there are questions of law or fact common to the class; (3) the claims or defenses of the representative parties are typical of the claims or defenses of the class; and (4) the representative parties will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). Courts refer to these four requirements, which must be satisfied to maintain a class action, as “numerosity, commonality, typicality and adequacy of representation.” Mazza v. Am. Honda, Motor Co., 666 F.3d 581, 588 (9th Cir.2012). In addition to meeting the requirements of Rule 23(a), the Court must also find that Plaintiffs have satisfied “through evidentiary proof’ one of the three subsections of Rule 23(b). Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013). The Court can certify a Rule 23(b)(2) class if “the party opposing the class has acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate respecting the class as a whole.” Fed.R.Civ.P. 23(b)(2). “[A] court’s class-certification analysis must be ‘rigorous’ and may ‘entail some overlap with the merits of the plaintiffs underlying claim.’ ” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1194, 185 L.Ed.2d 308 (2013) (quoting Wal-Mart Stores, Inc." }, { "docid": "15909921", "title": "", "text": "may ‘entail some overlap with the merits of the plaintiffs underlying claim.’” Amgen Inc., 133 S.Ct. at 1194 (quoting Dukes, 131 S.Ct. at 2551). However, “Rule 23 grants courts no license to engage in free-ranging merits inquiries at the certification stage. Merits questions may be considered to the extent— but only to the extent—that they are relevant to determining whether Rule 23 prerequisites for class certification are satisfied.” Id. at 1194-95. “Factual determinations necessary to make Rule 23 findings must be made by a preponderance of the evidence.” In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 320 (3d Cir.2008). To satisfy the Rule 23(a) requirements: (1) the class must be “so numerous that joinder of all members is impracticable” (numerosity); (2) there must be “questions of law or fact common to the class” (commonality); (3) “the claims or defenses of the representative parties” must be “typical of the claims or defenses of the class” (typicality); and (4) the named plaintiffs must “fairly and adequately protect the interests of the class” (adequacy of representation, or simply adequacy). Marcus, 687 F.3d at 590-91 (citations omitted). Here, Plaintiff seeks certification of the proposed class, as previously defined, pursuant to Rule 23(b)(3). This Rule permits certification when the court finds that “questions of law or fact common to class members predominate over any questions affecting only individual members” and that “a class action is superior to other available methods for fairly and efficiently adjudicating the controversy.” Fed.R.Civ.P. 23(b)(3). DISCUSSION In the class action complaint, Plaintiff avers that Defendants violated various provisions of the FDCPA when sending a collection letter (see Exhibit A, attached to the amended complaint) that was a false, deceptive, or misleading representation or means in connection with the collection of a debt, and/or was an unfair or unconscionable means to collect or attempt to collect a debt. Plaintiffs contentions are premised on the argument that the representation that appears in the letter implies that if the consumer/reeipient agreed to pay a certain reduced amount of money to satisfy the debt owed, Defendants would stop applying interest to the debt when," }, { "docid": "11592428", "title": "", "text": "equal, the presumption is against class certification because class actions are an exception to our constitutional tradition of individual litigation. See Comcast Corp. v. Behrend, — U.S. -, 133 S.Ct. 1426, 1432, 185 L.Ed.2d 515 (2013); Hansberry v. Lee, 311 U.S. 32, 40-41, 61 S.Ct. 115, 85 L.Ed. 22 (1940). A district court that has doubts about whether “the requirements of Rule 23 have been met should refuse certification until they have been met.” Fed¡R.Civ.P. 23 advisory committee’s note to 2003 amendment; accord In re Hydrogen Peroxide Antitrust Litig., 552 F.3d 305, 321 (3d Cir.2008); Wallace B. Roderick Revocable Living Trust v. XTO Energy, Inc., 725 F.3d 1213, 1218 (10th Cir.2013). .The district .court also misstated the law when it said that it “accepts the allegations in the complaint as true,” Terrill, 295 F.R.D. at 682 (quoting Mazur, 257 F.R.D. at 566), and. “draws all inferences and presents all evidence in the light most favorable .to Plaintiffs,” id.. at 680. The party seeking class certification has a burden of proof, not a burden of pleading. See Halliburton Co. v. Erica P. John Fund, Inc., — U.S. -, 134 S.Ct. 2398, 2412, 189 L.Ed.2d 339 (2014). He “/must affirmatively demonstrate his compliance’ with Rule 23” by proving that the requirements are “in fact” satisfied. Comcast, 133 S.Ct. at 1432 (quoting Wal-Mart, 131 S.Ct. at 2551). And the district court must conduct a “rigorous analysis” to determine whether the movant carried his burden, which “will frequently entail ‘overlap with the merits of the plaintiffs underlying claim.’ ” Id. (quoting Wal-Mart, 131 S.Ct. at 2551). Of course, the district court can consider the merits “only” to the extent “they are relevant to determining whether the Rule 23 prerequisites for class certification are satisfied.” Amgen Inc. v. Conn. Ret. Plans & Trust Funds, — U.S. -, 133 S.Ct. 1184, 1195, 185 L.Ed.2d 308 (2013). But if a question of fact or law is relevant to that determination, then the district court fias a duty to actually decide it and not accept it as true or construe it in anyone’s favor, See Comcast, 133 S.Ct." } ]

[ { "docid": "16648369", "title": "", "text": "88 L.Ed. 1209 (1944) (quoting Carpenter v. Shaw, 280 U.S. 363, 367-68, 50 S.Ct. 121, 123, 74 L.Ed. 478 (1930)). The proper analysis to arrive at the real nature of the assessment is to examine “all the facts and circumstances ... and assess them on the basis of economic realities....” United States v. City of Columbia, Mo., 914 F.2d 151, 154 (8th Cir.1990). Under this analysis, we conclude that the service fee imposed by the City is a tax in the most classic sense of the term. The United States must pay reasonable user fees. For instance, charges for services from city-owned utilities are clearly fees for which the federal government would be liable to the same extent as any other customer. See United States v. Harford Co., Md., 572 F.Supp. 239, 241 (D.Md.1983) (“The federal government has ... recognized its obligation to pay state or county charges based on the quantum of water or sewer services rendered.”) (emphasis in original). But not every assessment tied to some state-provided benefit is a user fee. Fire and flood protection and street maintenance are core government services. See Mullen Benev. Corp. v. United States, 290 U.S. 89, 54 S.Ct. 38, 78 L.Ed. 192 (1933) (United States immune from liability for “taxes in the nature of reassessments for sewers and sidewalks.”); see also Federal Reserve Bank v. Metro Center Improvement District #1, 657 F.2d 183 (8th Cir.1981), aff'd, 455 U.S. 995, 102 S.Ct. 1625, 71 L.Ed.2d 857 (1982) (federal immunity from taxation includes immunity from special assessment on real estate owned by federal instrumentality); United States v. Harford Co., Md., 572 F.Supp. 239 (D.Md.1983) (front-foot assessment for the financing of county water and sewer construction projects are taxes from which the federal government was immune). Under the theory advanced by the City, virtually all of what now are considered “taxes” could be transmuted into “user fees” by the simple expedient of dividing what are generally accepted as taxes into constituent parts, e.g., a “police fee.” User fees are payments given in return for a government-provided benefit. Taxes, on the other hand, are “enforced" } ]

[ { "docid": "3859614", "title": "", "text": "v. Tax Assessor, 116 F.3d 943, 946 (1st Cir.1997). Instead, the critical inquiry focuses on the purpose of the assessment and the ultimate use of the funds. See Collins Holding, 123 F.3d at 800 (“[T]he heart of the inquiry centers on function, requiring an analysis of the purpose and ultimate use of the assessment.”); Hager v. City of West Peoria, 84 F.3d 865, 870-71 (7th Cir.1996) (“Rather than a question solely of where the money goes, the issue is why the money is taken.”); San Juan Cellular Tel. Co. v. Public Serv. Comm’n, 967 F.2d 683, 685 (1st Cir.1992) (stating that in close cases courts “have tended ... to emphasize the revenue’s ultimate use”). [T]he classic tax sustains the essential flow of revenue to the government, while the classic fee is linked to some regulatory scheme. The classic tax is imposed by a state or municipal legislature, while the classic fee is imposed by an agency upon those it regulates. The classic tax is designed to provide a benefit for the entire community, while the classic fee is designed to raise money to help defray an agency’s regulatory expenses. Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1011 (5th Cir.1998) (footnotes omitted) (holding that impact fee imposed by City of Madison constituted a tax for purposes of Tax Injunction Act); accord Folio v. City of Clarksburg, W.Va., 134 F.3d 1211, 1217 (4th Cir.1998) (“A tax is generally a revenue-raising measure, imposed by a legislative body, that allocates revenue ‘to a general fund, and [is] spent for the benefit of the entire community.’ A user fee ... is a ‘payment[ ] given in return for a government provided benefit’ and is tied in some fashion to the payor’s use of the service.” (citations omitted)); San Juan Cellular, 967 F.2d at 685 (stating that the classic tax raises money which is contributed to a general fund and spent for the benefit of the whole community while the classic fee serves regulatory purposes and “is imposed by an agency upon those subject to its regulation”). We begin" }, { "docid": "11512634", "title": "", "text": "F.2d 371, 374 (3d Cir.1978); see Collins Holding Corp., 123 F.3d at 800 n. 3 (noting that “[wjhether the body imposing the assessment labels it as a tax or a fee is not dispositive because the label is not always consistent with the true character of the assessment”). Thus, we look to federal law which “make[s] a general distinction between broader-based taxes that sustain the essential flow of revenue to state (or local) government and fees that are connected to some regulatory scheme.” Collins Holding Corp., 123 F.3d at 800. A tax is generally a revenue-raising measure, imposed by a legislative body, that allocates revenue “to a general fund, and[is] spent for the benefit of the entire community.” Id. (quoting San Juan Cellular Tel. Co. v. Public Serv. Comm’n, 967 F.2d 683, 685 (1st Cir.1992)). A user fee, by contrast, is a “payment[ ] given in return for a government provided benefit” and is tied in some fashion to the payor’s use of the service. United States v. City of Huntington, 999 F.2d 71, 74 (4th Cir.1993). Generally speaking, a special assessment imposed by a municipality qualifies as a tax within the meaning of the Tax Injunction Act. See, e.g., Burris, 941 F.2d at 720; Indiana Waste Sys., Inc. v. County of Porter, 787 F.Supp. 859, 865 (N.D.Ind.1992) (collecting cases). This court has previously considered an essentially indistinguishable West Virginia municipal ordinance imposing fire service protection fees, and there we concluded that it constituted a tax within the meaning of the Tax Injunction Act because liability for the fee was based upon a resident’s property owner status instead of his use of the city service. See City of Huntington, 999 F.2d at 73-74. We are not able to distinguish the fire service protection fee at issue here from the one the court studied in City of Huntington, and, as did that court, we conclude that the fee is a tax for purposes of the Tax Injunction Act. III. Finally, Appellants contend that the principles of judicial estoppel prohibit the City from arguing in state court that the assessment here is" }, { "docid": "20410473", "title": "", "text": "the Tax Injunction Act is a question of federal law. Wright v. Riveland, 219 F.3d 905, 911 (9th Cir.2000); Wright v. McClain, 835 F.2d 143, 144 (6th Cir.1987); Tramel v. Schrader, 505 F.2d 1310, 1315 n. 7 (5th Cir.1975). That the surcharge survived uniformity and public-purpose clause challenges under the state constitution is irrelevant to this question. A common difficulty in applying the Tax Injunction Act is distinguishing between a “tax” and a “regulatory fee.” Fees assessed pursuant to a regulatory scheme fall outside the ambit of the Act, and so federal suits challenging state or local regulatory fees do not implicate the Act’s jurisdictional bar. Hager v. City of W. Peoria, 84 F.3d 865, 870-71 (7th Cir. 1996); Bidart Bros. v. Cal. Apple Comm’n, 73 F.3d 925, 930-31 (9th Cir.1996); San Juan Cellular Tel. Co. v. Pub. Serv. Comm’n of Puerto Rico, 967 F.2d 683, 685-87 (1st Cir.1992). We have explained the distinction in this way: Courts faced with distinguishing a “tax” from a “fee” “have tended ... to emphasize the revenue’s ultimate use, asking whether it provides a general benefit to the public, of a sort often financed by a general tax, or whether it provides more narrow benefits to regulated companies or defrays the agency’s cost of regulation.” Hager, 84 F.3d at 870 (quoting San Juan Cellular, 967 F.2d at 685). Our decision in Hager drew on the First Circuit’s influential opinion in San Juan Cellular, in which then-Judge Breyer elaborated on the difference between a tax and a regulatory fee for purposes of the Tax Injunction Act: [Courts] have sketched a spectrum with a paradigmatic tax at one end and a paradigmatic fee at the other. The classic “tax” is imposed by a legislature upon many, or all, citizens. It raises money, contributed to a general fund, and spent for the benefit of the entire community. The classic “regulatory fee” is imposed by an agency upon those subject to its regulation. It may serve regulatory purposes directly by, for example, deliberately discouraging particular conduct by making it more expensive. Or, it may serve such purposes indirectly" }, { "docid": "1591562", "title": "", "text": "are imposed only upon apple producers. Food Code § 75630. This narrow imposition weighs in favor of Bidart, but like the nature of the entity imposing the assessment, is not dispositive. 3. The “Ultimate Use” of the Assessments Where the first two factors are not dispositive, courts examining whether an assessment is a tax “have tended ... to emphasize the revenue’s ultimate use.” San Juan Cellular, 967 F.2d at 685. Assessments treated as general revenues and paid into the state’s general fund are taxes. See Travelers Ins. Co. v. Cuomo, 14 F.3d 708, 713 (2nd Cir.1993), rev’d on other grounds sub nom. New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., — U.S.-, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995); Robinson Protective Alarm Co. v. City of Philadelphia, 581 F.2d 371, 376 (3rd Cir.1978); Butler, 767 F.Supp. at 19. An assessment placed in a special fund and used only for special purposes is less likely to be a tax. See Trailer Marine, 977 F.2d at 6 (fees held separately from general funds and used only to compensate automobile accident victims were not taxes under TIA); Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F.2d 1267, 1271 n. 2 (7th Cir.1992) (fees imposed on waste transportation vehicles used to implement waste disposal regulatory system and not reverting to general funds were not taxes under TIA), cert. denied, 506 U.S. 1053, 113 S.Ct. 977, 122 L.Ed.2d 131 (1993); San Juan Cellular, 967 F.2d at 686. However, even assessments that are segregated from general revenues are “taxes” under the TIA if expended to provide “a general benefit to the public.” San Juan Cellular, 967 F.2d at 685. In Wright, an assessment upon a parolee was a tax under the TIA, even though it was earmarked for the Corrections Department budget, because it was used to defray the costs of monitoring parolees and to compensate victims, purposes relating “directly to the general welfare of the citizens” of the state. 835 F.2d at 145. The court in Schneider Transport, Inc. v. Cattanach, 657 F.2d 128 (7th Cir.1981), cert. denied," }, { "docid": "11512633", "title": "", "text": "for purposes of the Tax Injunction Act. We conclude that it does. Appellants contend that the phrase “tax understate law,” see 28 U.S.C.A. § 1341, requires this court to look to state law to determine whether the assessment at issue is a tax within the meaning of the Tax Injunction Act, arguing that “the label given the assessment by the highest court of a state is dispositive of whether the assessment is [a tax] for purposes of the Act.” Brief of Appellants at 21. Because the Bacon court concluded that a similar ordinance imposes a “fee” under West Virginia law, see Bacon, at 465-69, 473 S.E.2d at 751-54, appellants claim that the ordinance before us is not a “tax under state law” and falls outside of the Tax Injunction Act. We cannot agree. For purposes of the Tax Injunction Act, it is this court that decides whether the state or local law is a tax, guided by “federal law ... rather than ... state tax labels.” Robinson Protective Alarm Co. v. City of Philadelphia, 581 F.2d 371, 374 (3d Cir.1978); see Collins Holding Corp., 123 F.3d at 800 n. 3 (noting that “[wjhether the body imposing the assessment labels it as a tax or a fee is not dispositive because the label is not always consistent with the true character of the assessment”). Thus, we look to federal law which “make[s] a general distinction between broader-based taxes that sustain the essential flow of revenue to state (or local) government and fees that are connected to some regulatory scheme.” Collins Holding Corp., 123 F.3d at 800. A tax is generally a revenue-raising measure, imposed by a legislative body, that allocates revenue “to a general fund, and[is] spent for the benefit of the entire community.” Id. (quoting San Juan Cellular Tel. Co. v. Public Serv. Comm’n, 967 F.2d 683, 685 (1st Cir.1992)). A user fee, by contrast, is a “payment[ ] given in return for a government provided benefit” and is tied in some fashion to the payor’s use of the service. United States v. City of Huntington, 999 F.2d 71, 74" }, { "docid": "1591563", "title": "", "text": "from general funds and used only to compensate automobile accident victims were not taxes under TIA); Government Suppliers Consolidating Servs., Inc. v. Bayh, 975 F.2d 1267, 1271 n. 2 (7th Cir.1992) (fees imposed on waste transportation vehicles used to implement waste disposal regulatory system and not reverting to general funds were not taxes under TIA), cert. denied, 506 U.S. 1053, 113 S.Ct. 977, 122 L.Ed.2d 131 (1993); San Juan Cellular, 967 F.2d at 686. However, even assessments that are segregated from general revenues are “taxes” under the TIA if expended to provide “a general benefit to the public.” San Juan Cellular, 967 F.2d at 685. In Wright, an assessment upon a parolee was a tax under the TIA, even though it was earmarked for the Corrections Department budget, because it was used to defray the costs of monitoring parolees and to compensate victims, purposes relating “directly to the general welfare of the citizens” of the state. 835 F.2d at 145. The court in Schneider Transport, Inc. v. Cattanach, 657 F.2d 128 (7th Cir.1981), cert. denied, 455 U.S. 909, 102 S.Ct. 1257, 71 L.Ed.2d 448 (1982), found vehicle registration fees to be taxes because they were used for transportation purposes, including highway construction, even though the fees were deposited in funds separate from the state’s general funds. Id. at 132. See also Indiana Waste Sys., 787 F.Supp. at 865 (holding that “fee” imposed on landfill owners was a “tax” even though placed in a segregated fund and spent only on the administration of landfills and for recycling). The assessment in the case at hand is placed in a segregated fund, and used only for Commission purposes. Food Code § 75595.5. Unlike San Juan Cellular, where the assessment could be transferred to the general fund of Puerto Rico after five years, 967 F.2d at 687, the Commission assessments are returned to the apple producers if the Commission is terminated. Food Code § 75655. Thus, the Commission funds are more clearly segregated than the assessments in San Juan Cellular, which were not taxes. Even though Commission funds are segregated from California’s general funds," }, { "docid": "11117142", "title": "", "text": "remedy inquiry thus involves an examination of state law to determine whether a taxpayer who follows the proper channels can receive adequate judicial review under state law. Various circuit court decisions provide guidance for considering the second question — whether the law is a “tax” or a “fee.” See Cumberland Farms, Inc. v. Tax Assessor, 116 F.3d 943 (1st Cir.1997); Hager v. City of West Peoria, 84 F.3d 865 (7th Cir.1996); Bidart Bros. v. California Apple Comm’n, 73 F.3d 925 (9th Cir.1996); San Juan Cellular Tel. Co. v. Public Serv. Comm’n, 967 F.2d 683 (1st Cir.1992). These eases make a general distinction between broader-based taxes that sustain the essential flow of revenue to state (or local) government and fees that are connected to some regulatory scheme. Taxes fall within the scope of the Tax Injunction Act, but regulatory fees do not. Distinguishing a tax from a fee often requires careful analysis because the line between “tax” and “fee” can be a blurry one. The First Circuit has identified the clear cases: [Courts] have sketched a spectrum with a paradigmatic tax at one end and a paradigmatic fee at the other. The classic “tax” is imposed by a legislature upon many, or all, citizens. It raises money, contributed to a general fund, and spent for the benefit of the entire community. The classic “regulatory fee” is imposed by an agency upon those subject to its regulation. It may serve regulatory purposes directly by, for example, deliberately discouraging particular conduct by making it more expensive. Or, it may serve such purposes indirectly by, for example, raising money placed in a special fund to help defray the agency’s regulation related expenses. San Juan Cellular, 967 F.2d at 685 (citations omitted). It is useful to begin with a look at who imposes, administers, and collects the assessment. An assessment imposed directly by a legislature is more likely to be a tax than one imposed by an administrative agency. Cumberland Farms, 116 F.3d at 946; Bidart Bros., 73 F.3d at 931; San Juan Cellular, 967 F.2d at 686. If responsibility for administering and collecting the" }, { "docid": "23190979", "title": "", "text": "Block, 717 F.2d 874, 887 (4th Cir.1983), cert, denied, 465 U.S. 1080, 104 S.Ct. 1444, 79 L.Ed.2d 764 (1984). Or, it may serve such purposes indirectly by, for example, raising money placed in a special fund to help defray the agency’s regulation-related expenses. See, e.g., Union Pacific Railroad Co. v. Public Utility Commission, 899 F.2d 854, 856 (9th Cir.1990); In re Justices, 695 F.2d at 27; see also National Cable, 415 U.S. at 343-44, 94 S.Ct. at 1150-51. Courts facing cases that lie near the middle of this spectrum have tended (sometimes with minor differences reflecting the different statutes at issue) to emphasize the revenue’s ultimate use, asking whether it provides a general benefit to the public, of a sort often financed by a general tax, or whether it provides more narrow benefits to regulated companies or defrays the agency’s costs of regulation. Thus, the Seventh Circuit has called a Wisconsin Department of Transportation charge upon trucks a “tax,” because the charge was used to help pay for highway construction, a “general” type of public expenditure. Schneider Transport, Inc. v. Cattanach, 657 F.2d 128, 132 (7th Cir.1981), cert, denied, 455 U.S. 909, 102 S.Ct. 1257, 71 L.Ed.2d 448 (1982). The Second Circuit has called a city-assessed public utility “franchise fee” a “tax” because the money raised was treated as part of the city’s “general revenue.” Keleher v. New England Tel. & Tel. Co., 947 F.2d 547, 549 (2d Cir.1991). , And, the Third Circuit has held that a charge of 5% of gross revenues that a city assessed fire and burglar alarm companies was a “tax” for similar reasons. Robinson Protective Alarm Co., 581 F.2d at 376. On the other hand, the United States Supreme Court wrote, in 1884, that a statutory levy on shipowners of $.50 per passenger was not a tax because the revenue was used “ ‘to defray the expense of regulating immigration ... for the care of immigrants ... and for the general purposes and expense of carrying th[e immigration] act into effect.’” Head Money Cases, 112 U.S. 580, 590, 5 S.Ct. 247, 249, 28 L.Ed." }, { "docid": "10316329", "title": "", "text": "fees are never taxes. As the district court correctly concluded, this argument is fallacious. The Bidart test incorporates the distinction between proprietary and governmental power in its factors. For example, the third factor evaluates whether the revenues are spent to benefit the general public instead of a limited class of individuals. This factor is critical in distinguishing proprietary from governmental activities because a government does not ordinarily benefit the general public when it acts in a proprietary capacity. See Black’s Law Dictionary 1256 (8th ed.2004) (defining “proprietary function” as “[a] municipality’s conduct that is performed for the profit or benefit of the municipality, rather than for the benefit of the general public.”). Thus, the Bidart test addresses Qwest’s concerns of proprietary versus governmental powers. Moreover, case law from other circuits does not support Qwest’s position. Qwest cautions this Court against being the first court to declare such “rental fees” taxes. However, we blaze no new trails in reaching such a conclusion. Numerous other courts have concluded that charges imposed upon users of a city’s rights-of-way are taxes for purposes of the Tax Injunction Act. See, e.g., Robinson Protective Alarm Co. v. City of Philadelphia, 581 F.2d 371, 376 (3d Cir.1978) (ordinance imposing 5% charge on gross revenues of companies using underground wires is a tax despite the state court labeling it a rental fee); Keleher v. New England Tel. & Tel. Co., 947 F.2d 547, 549 (2d Cir.1991) (ordinance requiring utility companies using and occupying city streets to pay 2.5% of their gross revenues as fees constituted a tax) abrogated on other grounds by Jefferson County v. Acker, 527 U.S. 423, 434, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999); City of Chattanooga v. BellSouth Telecomm., Inc., 1 F.Supp.2d 809, 814 (E.D.Tenn.1998) (ordinance imposing 5% charge on gross revenue of telecommunications providers that install cable on rights-of-way is a tax despite being labeled “rent” in the ordinance). In each of these cases, the court evaluated factors similar to those in the Bidart test in determining whether the charge was a tax or a fee. Qwest provided us with no case law," }, { "docid": "16729519", "title": "", "text": "charge is.” RTC Commercial, 169 F.3d at 457 (citing Reconstr. Fin. Corp. v. Beaver Cnty., Pa., 328 U.S. 204, 207-10, 66 S.Ct. 992, 90 L.Ed. 1172 (1946)). “The most common formula for classifying exactions under the Tax Injunction Act [is to] ask[ ] whether the payment is a tax to raise general revenue or is a fee incident to regulation.” Trailer Marine Transp. Corp. v. Rivera Vazquez, 977 F.2d 1, 5 (1st Cir.1992). This “formula” is drawn from an influential First Circuit opinion by then-judge Breyer distinguishing for TIA purposes between revenue-raising tax measures, which are covered by the jurisdictional bar, and regulatory fees, which are not. See San Juan Cellular Tel. Co. v. Pub. Serv. Comm’n of Puerto Rico, 967 F.2d 683 (1st Cir.1992). Following this lead, most courts look to the structure and purpose of the charge at issue to determine whether it counts as a tax for purposes of the TIA. See Hill v. Kemp, 478 F.3d 1236, 1244-48 (10th Cir.2007); Folio v. City of Clarksburg, 134 F.3d 1211, 1217 (4th Cir.1998); Hager v. City of W. Peoria, 84 F.3d 865, 870-71 (7th Cir.1996); Bidart Bros. v. Calif. Apple Comm’n, 73 F.3d 925, 930-33 (9th Cir.1996); Trailer Marine, 977 F.2d at 5-6; San Juan Cellular, 967 F.2d at 684-86; Wright v. McClain, 835 F.2d 143, 144-45 (6th Cir.1987). Moreover, the Supreme Court has held that the primary object of the TIA is to protect the flow of state and local revenue from federal-court interference, see Hibbs, 542 U.S. at 106, 124 S.Ct. 2276; Grace Brethren Church, 457 U.S. at 410-11, 102 S.Ct. 2498, and this also explains why the cases tend to focus on whether the purpose of the challenged governmental exaction is regulatory or general-revenue-raising, see Hill, 478 F.3d at 1244-45 (noting that the “primary purpose of the special license plate scheme is revenue rather than regulation and thus it qualifies as a tax”); Folio, 134 F.3d at 1217 (distinguishing between “broader-based taxes that sustain the essential flow of revenue to state (or local) government and fees that are connected to some regulatory scheme” (internal quotation" }, { "docid": "7230314", "title": "", "text": "S.Ct. 1221, 1236, 67 L.Ed.2d 464 (1981) (quoting Perez v. Ledesma, 401 U.S. 82, 127 n. 17, 91 S.Ct. 674, 698 n. 17, 27 L.Ed.2d 701 (1971) (Brennan, J., concurring in part and dissenting in part)). Plaintiffs make two arguments in their effort to escape the Act’s broad sweep: (1) the Administrative Order does not impose a “tax under state law,” and (2) Defendant SJC, as the court of final appeal in Maine, should not be permitted to adjudicate a case in which it is a litigant. In support of their first argument, Plaintiffs assert that Defendant SJC is without authority under the Maine Constitution to impose a tax. Plaintiffs also remind the Court that Defendant SJC has denied in other proceedings that the Administrative Order imposes a tax. Nonetheless, labels applied either by state law or litigants are not dispositive. \"[T]he meaning of the term ‘tax under state law’ as used in § 1341 is a matter of federal law,” Crane v. Commissioner of Department of Agriculture, Food and Rural Resources, 602 F.Supp. 280, 282 n. 3 (D.Me.1985) (Cyr, C.J.), which should be determined by reference to the policies underlying the Act. Robinson Protective Alarm Co. v. City of Philadelphia, 581 F.2d 371, 374 (3d Cir.1978). While the Court of Appeals for the First Circuit has not yet spoken on the definition of “tax under state law,” there is wide agreement among other circuits. Assessments which are imposed primarily for revenue-raising purposes are “taxes,” while levies assessed for regulatory or punitive purposes, even though they may also raise revenues, are generally not “taxes.” See American Petrofina Co. v. Nance, 859 F.2d 840, 841 (10th Cir.1988); Wright v. McClain, 835 F.2d 143, 144-45 (6th Cir.1987); Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666, 670 (11th Cir.1984); Schneider Transport, Inc. v. Cattanach, 657 F.2d 128, 132 (7th Cir.1981), cert. denied, 455 U.S. 909, 102 S.Ct. 1257, 71 L.Ed.2d 448 (1982); Mobil Oil Corp. v. Tally, 639 F.2d 912, 918 (2d Cir.), cert. denied, 452 U.S. 967, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981); Robinson Protective Alarm Co., 581" }, { "docid": "11688776", "title": "", "text": "of appellants’ claim. Appellants appeal this ruling. II. We review de novo a grant of summary judgment. See Akers v. Caperton, 998 F.2d 220, 224 (4th Cir.1993). Similarly, we review de novo a dismissal for lack of subject matter jurisdiction. See Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir.1999). The TIA provides: The district court shall not enjoin, suspend, or restrain the assessment, levy, or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State. 28 U.S.C. § 1341. The TIA represents a recognition that states are best situated to administer their own fiscal operations. See Tully v. Griffin, Inc., 429 U.S. 68, 73, 97 S.Ct. 219, 50 L.Ed.2d 227 (1976). As such, the term “tax” is subject to a “broader” interpretation when reviewed under the aegis of the TIA. See Tramel v. Schrader, 505 F.2d 1310, 1315 (5th Cir.1975). The West Virginia charge at issue here is defined as a “fee” in the pertinent subsection of the statute. See W. Va.Code § 22-16-4(e). However, the nomenclature provided to the charge at issue is not material as the inquiry focuses on explicit factual circumstances that transcend the literal meaning of the terminology. See Folio v. City of Clarksburg, 134 F.3d 1211, 1216-17 (4th Cir.1998). To determine whether a particular charge is a “fee” or a “tax,” the general inquiry is to assess whether the charge is for revenue raising purposes, making it a “tax,” or for regulatory or punitive purposes, making it a “fee.” See Collins Holding Corp. v. Jasper County, 123 F.3d 797, 800 (4th Cir.1997). To aid this analysis, courts have developed a three-part test that looks to different factors: (1) what entity imposes the charge; (2) what population is subject to the charge; and (3) what purposes are served by the use of the monies obtained by the charge. See San Juan Cellular Telephone Co. v. Public Service Comm’n, 967 F.2d 683, 685 (1st Cir.1992); see also Bidart Bros. v. California Apple Comm’n, 73 F.3d 925, 931 (9th Cir.1996). In San" }, { "docid": "20410472", "title": "", "text": "... operate! ] to reduce the flow of state tax revenue’ or would tie up ‘rightful tax revenue,’ then the Act bars federal jurisdiction over the claims.” Levy, 510 F.3d at 762 (quoting Hibbs, 542 U.S. at 106, 124 S.Ct. 2276, and Rosewell v. LaSalle Nat’l Bank, 450 U.S. 503, 527-28, 101 S.Ct. 1221, 67 L.Ed.2d 464 (1981)); see also Scott Air Force Base Props., LLC v. Cnty. of St. Clair, 548 F.3d 516, 520 (7th Cir.2008) (Tax Injunction Act applies if “the relief sought would diminish or encumber state tax revenue”). A threshold question under the Act is whether the casino surcharge is a “tax.” The racetracks maintain that it is and therefore the Act applies; their argument is based largely on the Illinois Supreme Court’s decision in Empress Casino v. Giannoulias. The racetracks contend that we should defer to the way the state supreme court characterized the surcharge in upholding it against the casinos’ constitutional challenges. This argument is misplaced. Whether a particular state or local assessment is a tax for purposes of the Tax Injunction Act is a question of federal law. Wright v. Riveland, 219 F.3d 905, 911 (9th Cir.2000); Wright v. McClain, 835 F.2d 143, 144 (6th Cir.1987); Tramel v. Schrader, 505 F.2d 1310, 1315 n. 7 (5th Cir.1975). That the surcharge survived uniformity and public-purpose clause challenges under the state constitution is irrelevant to this question. A common difficulty in applying the Tax Injunction Act is distinguishing between a “tax” and a “regulatory fee.” Fees assessed pursuant to a regulatory scheme fall outside the ambit of the Act, and so federal suits challenging state or local regulatory fees do not implicate the Act’s jurisdictional bar. Hager v. City of W. Peoria, 84 F.3d 865, 870-71 (7th Cir. 1996); Bidart Bros. v. Cal. Apple Comm’n, 73 F.3d 925, 930-31 (9th Cir.1996); San Juan Cellular Tel. Co. v. Pub. Serv. Comm’n of Puerto Rico, 967 F.2d 683, 685-87 (1st Cir.1992). We have explained the distinction in this way: Courts faced with distinguishing a “tax” from a “fee” “have tended ... to emphasize the revenue’s ultimate use," }, { "docid": "3859615", "title": "", "text": "classic fee is designed to raise money to help defray an agency’s regulatory expenses. Home Builders Ass’n of Miss., Inc. v. City of Madison, Miss., 143 F.3d 1006, 1011 (5th Cir.1998) (footnotes omitted) (holding that impact fee imposed by City of Madison constituted a tax for purposes of Tax Injunction Act); accord Folio v. City of Clarksburg, W.Va., 134 F.3d 1211, 1217 (4th Cir.1998) (“A tax is generally a revenue-raising measure, imposed by a legislative body, that allocates revenue ‘to a general fund, and [is] spent for the benefit of the entire community.’ A user fee ... is a ‘payment[ ] given in return for a government provided benefit’ and is tied in some fashion to the payor’s use of the service.” (citations omitted)); San Juan Cellular, 967 F.2d at 685 (stating that the classic tax raises money which is contributed to a general fund and spent for the benefit of the whole community while the classic fee serves regulatory purposes and “is imposed by an agency upon those subject to its regulation”). We begin our analysis with the $2.25 portion of the assessment imposed by section 8-145d of the Kansas Statutes. While some part of the funds collected pursuant to section 8-145d may ultimately reach the general fund of the county, see Kan. Stat. Ann. § 8-145(b), or the state highway fund, see id. § 8-145(e), the governing statute expressly ties these monies to the administration of the motor vehicle registration laws. See id. § 8-145(b) (explaining that the “special fund” is “appropriated for the use of the county treasurer in paying for necessary help and expenses incidental to the administration of duties” under this law); see also Board of Comm’rs v. Ferguson, 159 Kan. 80, 151 P.2d 694, 697 (1944) (describing “special fund” under section 8-145 as “created to meet the [county] treasurer’s administrative expenses”); XVI Kan. Op. Att’y. Gen. 27 (1982) (stating that the fees collected pursuant to section 8-145 are deposited into a special fund which is used to pay for necessary help and expenses incidental to administering the motor vehicle registration laws). Only if there" }, { "docid": "16729520", "title": "", "text": "Hager v. City of W. Peoria, 84 F.3d 865, 870-71 (7th Cir.1996); Bidart Bros. v. Calif. Apple Comm’n, 73 F.3d 925, 930-33 (9th Cir.1996); Trailer Marine, 977 F.2d at 5-6; San Juan Cellular, 967 F.2d at 684-86; Wright v. McClain, 835 F.2d 143, 144-45 (6th Cir.1987). Moreover, the Supreme Court has held that the primary object of the TIA is to protect the flow of state and local revenue from federal-court interference, see Hibbs, 542 U.S. at 106, 124 S.Ct. 2276; Grace Brethren Church, 457 U.S. at 410-11, 102 S.Ct. 2498, and this also explains why the cases tend to focus on whether the purpose of the challenged governmental exaction is regulatory or general-revenue-raising, see Hill, 478 F.3d at 1244-45 (noting that the “primary purpose of the special license plate scheme is revenue rather than regulation and thus it qualifies as a tax”); Folio, 134 F.3d at 1217 (distinguishing between “broader-based taxes that sustain the essential flow of revenue to state (or local) government and fees that are connected to some regulatory scheme” (internal quotation marks omitted)); Hager, 84 F.3d at 870-71 (drawing the same distinction between general-revenue-raising and regulatory purposes); Bidart Bros., 73 F.3d at 930-33 (same); Trailer Marine, 977 F.2d at 5-6 (same); San Juan Cellular, 967 F.2d at 684-86 (same); Schneider Transp., Inc. v. Cattanach, 657 F.2d 128, 132 (7th Cir.1981) (same). Finally, the form of relief requested is an important part of the inquiry. “[I]f the relief sought would diminish or encumber state tax revenue, then the Act bars federal jurisdiction over claims seeking such relief.” Scott Air Force Base, 548 F.3d at 520 (citing Levy, 510 F.3d at 762); see also Trailer Marine, 977 F.2d at 5-6. For the en banc court, the only payments that count as “fees” are those that “compensate for a service that the state provides to the persons or firms on whom or on which the exaction falls” or those that “compensate the state for costs imposed on it by those persons or firms, other than costs of providing a service to them.” Majority Op. at 728. This includes “[f]ees" }, { "docid": "23190980", "title": "", "text": "expenditure. Schneider Transport, Inc. v. Cattanach, 657 F.2d 128, 132 (7th Cir.1981), cert, denied, 455 U.S. 909, 102 S.Ct. 1257, 71 L.Ed.2d 448 (1982). The Second Circuit has called a city-assessed public utility “franchise fee” a “tax” because the money raised was treated as part of the city’s “general revenue.” Keleher v. New England Tel. & Tel. Co., 947 F.2d 547, 549 (2d Cir.1991). , And, the Third Circuit has held that a charge of 5% of gross revenues that a city assessed fire and burglar alarm companies was a “tax” for similar reasons. Robinson Protective Alarm Co., 581 F.2d at 376. On the other hand, the United States Supreme Court wrote, in 1884, that a statutory levy on shipowners of $.50 per passenger was not a tax because the revenue was used “ ‘to defray the expense of regulating immigration ... for the care of immigrants ... and for the general purposes and expense of carrying th[e immigration] act into effect.’” Head Money Cases, 112 U.S. 580, 590, 5 S.Ct. 247, 249, 28 L.Ed. 798 (1884) (quoting 22 Stat. 214). More recently, the Ninth Circuit has held that a Public Utilities Commission’s assessment was a “fee,” not a “tax,” because it helped “defray the cost of performing the regulatory duties imposed” on the Commission. Union Pacific Railroad Co., 899 F.2d at 856. The Fifth Circuit has held that a Nuclear Regulatory Commission's charge was a “fee,” not a tax, when it helped to pay the costs of “environmental reviews,” “uncontested hearings,” and “administrative and technical support” for licensing procedures. Mississippi Power & Light Co. v. U.S. Nuclear Regulatory Commission, 601 F.2d 223, 228, 231-32 (5th Cir.1979), cert, denied, 444 U.S. 1102, 100 S.Ct. 1066, 62 L.Ed.2d 787 (1980). The Seventh Circuit has commented that a Wisconsin Department of Transportation charge upon trucks was a “fee,” not a “tax,” when the revenues raised by that particular charge helped pay for efforts to “identify authorized vehicles for regulatory purposes.” Schneider Transport, 657 F.2d at 132 (citing Wisconsin v. Yellow Freight System, Inc., 96 Wis.2d 484, 292 N.W.2d 361 (1980), aff'd, 101" }, { "docid": "6141877", "title": "", "text": "York City Dep’t of Housing Preservation and Development, 959 F.2d 395, 400 (2d Cir.1992). Plaintiffs do not argue that the remedy available to them in the state court fails this standard. Accordingly, the only issue that must be decided is whether the “occupancy charge” imposed on newsstand vendors under the concession scheme is a tax within the meaning of the Act. To determine whether a measure that raises revenue is a tax for purposes of the Act, rather than merely a “regulatory fee,” courts “have tended ... to emphasize the revenue’s ultimate use, asking whether it provides a general benefit to the public, of a sort often financed by a general tax, or whether it provides more narrow benefits to regulated companies or defrays the agency’s costs of regulation.” Travelers Ins. Co. v. Cuomo, 14 F.3d 708, 713 (2d Cir.1993) (quoting San Juan Cellular Tel. Co. v. Public Serv. Comm’n, 967 F.2d 683, 685 (1st Cir.1992)), rev’d on other grounds sub nom., New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Ins. Co., 514 U.S. 645, 653, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). Using this analytical framework, the Second Circuit in Travelers concluded that a New York statute imposing surcharges on hospital rates for certain payors was a “tax” for the purposes of the Tax Injunction Act, because “notwithstanding the primary [regulatory] purposes ascribed to the surcharges by the State, both [surcharges] raise revenue which is ultimately paid into the State’s general fund.” Id. There is no dispute in the present case that revenues derived from the City’s concession scheme flow into the City’s general revenue fund. Nevertheless, as the Second Circuit acknowledged in Travelers, “there is no bright line between assessments that are taxes and those that are not.” 14 F.3d at 713. Thus, a court must look beyond the mere fact that a scheme raises revenue. [Courts] have sketched a spectrum with a paradigmatic tax at one end and a paradigmatic fee at the other. The classic “tax” is imposed by a legislature upon many, or all, citizens. It raises money, contributed to" }, { "docid": "10316330", "title": "", "text": "are taxes for purposes of the Tax Injunction Act. See, e.g., Robinson Protective Alarm Co. v. City of Philadelphia, 581 F.2d 371, 376 (3d Cir.1978) (ordinance imposing 5% charge on gross revenues of companies using underground wires is a tax despite the state court labeling it a rental fee); Keleher v. New England Tel. & Tel. Co., 947 F.2d 547, 549 (2d Cir.1991) (ordinance requiring utility companies using and occupying city streets to pay 2.5% of their gross revenues as fees constituted a tax) abrogated on other grounds by Jefferson County v. Acker, 527 U.S. 423, 434, 119 S.Ct. 2069, 144 L.Ed.2d 408 (1999); City of Chattanooga v. BellSouth Telecomm., Inc., 1 F.Supp.2d 809, 814 (E.D.Tenn.1998) (ordinance imposing 5% charge on gross revenue of telecommunications providers that install cable on rights-of-way is a tax despite being labeled “rent” in the ordinance). In each of these cases, the court evaluated factors similar to those in the Bidart test in determining whether the charge was a tax or a fee. Qwest provided us with no case law, Ninth Circuit or otherwise, holding that charges similar to the Cities’ charges constitute fees. Therefore, we hold that where, as here, an ordinance requires that a telecommunications provider pay a percentage of its gross revenues to the municipality, and the revenue from that charge is directed to the municipality’s general fund, the charge constitutes a tax. Because the charges are taxes under the Bidart test, we must next determine whether the Tax Injunction Act deprived the district court of subject matter jurisdiction. The Tax Injunction Act provides, “The district courts shall not enjoin, suspend or restrain the assessment, levy or collection of any tax under State law where a plain, speedy and efficient remedy may be had in the courts of such State.” 28 U.S.C. § 1341. The Supreme Court interpreted the Tax Injunction Act as a “broad jurisdictional barrier.” Arkansas v. Farm Credit Servs. of Cent. Ark., 520 U.S. 821, 825, 117 S.Ct. 1776, 138 L.Ed.2d 34 (1997) (quotation marks omitted). As the Court noted, the Act is “first and foremost a vehicle to" }, { "docid": "7230315", "title": "", "text": "282 n. 3 (D.Me.1985) (Cyr, C.J.), which should be determined by reference to the policies underlying the Act. Robinson Protective Alarm Co. v. City of Philadelphia, 581 F.2d 371, 374 (3d Cir.1978). While the Court of Appeals for the First Circuit has not yet spoken on the definition of “tax under state law,” there is wide agreement among other circuits. Assessments which are imposed primarily for revenue-raising purposes are “taxes,” while levies assessed for regulatory or punitive purposes, even though they may also raise revenues, are generally not “taxes.” See American Petrofina Co. v. Nance, 859 F.2d 840, 841 (10th Cir.1988); Wright v. McClain, 835 F.2d 143, 144-45 (6th Cir.1987); Miami Herald Publishing Co. v. City of Hallandale, 734 F.2d 666, 670 (11th Cir.1984); Schneider Transport, Inc. v. Cattanach, 657 F.2d 128, 132 (7th Cir.1981), cert. denied, 455 U.S. 909, 102 S.Ct. 1257, 71 L.Ed.2d 448 (1982); Mobil Oil Corp. v. Tally, 639 F.2d 912, 918 (2d Cir.), cert. denied, 452 U.S. 967, 101 S.Ct. 3123, 69 L.Ed.2d 981 (1981); Robinson Protective Alarm Co., 581 F.2d at 376; Tramel v. Schrader, 505 F.2d 1310, 1314-15 (5th Cir.1975). Cf. South Carolina ex rel. Tindal v. Block, 717 F.2d 874, 887 (4th Cir.1983) (defining “tax” in the context of the federal Constitution’s assignment of the taxing power), cert. denied, 465 U.S. 1080, 104 S.Ct. 1444, 79 L.Ed.2d 764 (1984). There is no question that the $300 jury fee fits comfortably within this definition of a “tax” under section 1341. One of the foundations for Plaintiffs’ claims, is their allegation that the fees collected will be funneled into Maine’s general fund, rather than being applied directly to the costs of jury trials. See Complaint at ¶1¶ 29-33, 43, 47, 51, 55, 57, 62, 63, 64, 72 (Docket No. 1). See also Plaintiffs’ Statement of Material Facts As To Which There is No Genuine Issue at 1T1T16 (“All revenue received from the Administrative Order goes to the State of Maine General Fund”), 17 (“The revenues raised by the Administrative Order are not dedicated to paying for the cost of civil jury.trials”) (Docket No. 25)." }, { "docid": "6141878", "title": "", "text": "Ins. Co., 514 U.S. 645, 653, 115 S.Ct. 1671, 131 L.Ed.2d 695 (1995). Using this analytical framework, the Second Circuit in Travelers concluded that a New York statute imposing surcharges on hospital rates for certain payors was a “tax” for the purposes of the Tax Injunction Act, because “notwithstanding the primary [regulatory] purposes ascribed to the surcharges by the State, both [surcharges] raise revenue which is ultimately paid into the State’s general fund.” Id. There is no dispute in the present case that revenues derived from the City’s concession scheme flow into the City’s general revenue fund. Nevertheless, as the Second Circuit acknowledged in Travelers, “there is no bright line between assessments that are taxes and those that are not.” 14 F.3d at 713. Thus, a court must look beyond the mere fact that a scheme raises revenue. [Courts] have sketched a spectrum with a paradigmatic tax at one end and a paradigmatic fee at the other. The classic “tax” is imposed by a legislature upon many, or all, citizens. It raises money, contributed to a general fund, and spent for the benefit of the entire community. The classic “regulatory fee” is imposed by an agency upon those subject to its regulation. It may serve regulatory purposes directly by, for example, deliberately discouraging particular conduct by making it more expensive. Or, it may serve such purposes indirectly by, for example, raising money placed in a special fund to help defray the agency’s regulation related expenses. Collins Holding Corp. v. Jasper County, S.C., 123 F.3d 797, 799 (quoting San Juan Cellular, 967 F.2d at 685 (citations omitted)). The occupancy charge at issue in this case possesses two characteristics that move it towards the “fee” end of the spectrum. First, the charge is administered by the Department of Transportation rather than by the general taxing authority. Second, it is levied upon a limited class of persons, i.e., newsstand vendors, rather than upon “many or all citizens.” See San Juan, 967 F.2d 683 (1st Cir.1992) (finding that “periodic fee” assessed on private company was not a “tax” because, inter alia, it was not" } ]

[ { "docid": "23348208", "title": "", "text": "the language used in them and without recourse to evidence, beyond the contract itself, as to what the parties meant. This presumption simplifies the litigation of contract disputes and, more important, protects contracting parties against being blindsided by evidence intended to contradict the deal that they thought they had graven in stone by using clear language. It is a strong presumption, motivated by an understandable distrust in the accuracy of litigation to reconstruct contracting parties’ intentions, but it is rebuttable — here by two principles of contract interpretation that are closely related in the setting of this suit. The first is that a contract will not be interpreted literally if doing so would produce absurd results, in the sense of results that the parties, presumed to be rational persons pursuing rational ends, are very unlikely to have agreed to seek. USA Life One Ins. Co. of Indiana v. Nuckolls, 682 N.E.2d 534, 539 (Ind.1997); Haworth v. Hubbard, 220 Ind. 611, 44 N.E.2d 967, 970 (1942); Merheb v. Illinois State Toll Highway Authority, 267 F.3d 710, 713 (7th Cir.2001); Funeral Financial Systems v. United States, 234 F.3d 1015, 1018 (7th Cir.2000); Grun v. Pneumo Abex Corp., 163 F.3d 411, 420 (7th Cir.1998); Catalina Enterprises, Inc. Pension Trust v. Hartford Fire Ins. Co., 67 F.3d 63, 66 (4th Cir.1995). This is an interpretive principle, not a species of paternalism. “The letters between plaintiff and defendant were from one merchant to another. They are to be read as businessmen would read them, and only as a last resort are to be thrown out altogether as meaningless futilities.... If literalness is sheer absurdity, we are to seek some other meaning whereby reason will be instilled and absurdity avoided.” Outlet Embroidery Co. v. Derwent Mills, 254 N.Y. 179, 172 N.E. 462, 463 (1930) (Cardozo, C.J.). “There is a long tradition in contract law of reading contracts sensibly; contracts — certainly business contracts of the kind involved here — are not parlor games but the means of getting the world’s work done.... True, parties can contract for preposterous terms. If contract language is crystal clear or" } ]

[ { "docid": "21898696", "title": "", "text": "parties disagree, however, over when the statute of limitations begins to run. Plaintiffs argue that the Court should apply the discovery rule and should hold that the statute of limitations begins to run only at the time the plaintiffs knew or should have known of the injury, in this case, the day of Mr. Long’s injury. They cite Ehrenhaft v. Malcolm Price, Inc., 483 A.2d 1192, 1203 (D.C.App.1984). Defendants argue that under the Uniform Commercial Code the discovery rule does not apply to the kind of breach of warranty claims alleged here. The Court agrees with defendants. The District of Columbia Code provides that “[a]n action for any breach of contract for sale must be commenced within four years after the cause of action accrues.” D.C.Code § 28:2-725(1). It further provides that: A cause of action accrues when the breach occurs, regardless of the aggrieved parties lack of knowledge of the breach. A breach of warranty occurs when tender of delivery is made, except that where a warranty explicitly extends to future performance of the goods and discovery of the breach must await the time of such performance the cause of action accrues when the breach is or should have been discovered. D.C.Code § 28:2-725(2). In Hull v. Eaton Corp., 825 F.2d 448, 456-57 (D.C.Cir.1987), the United States Court of Appeals for the District of Columbia Circuit declined to apply the discovery rule in a breach of warranty products Lability case. The court concluded that the discovery rule was applied by the District of Columbia Court of Appeals in Ehrenhaft to a different type of breach of warranty claim, one involving the provision of services rather than goods. The court in Hull held that the rule was not applicable to cases arising under the Uniform Commercial Code, which governs the sale of goods in the District of Columbia. The court noted that the Code itself explicitly defines when the statute of limitations accrues and that the Ehrenhaft court never considered warranties arising under the Uniform Commercial Code. Hull v. Eaton Corp., 825 F.2d at 456 & n. 12. The court" }, { "docid": "18197884", "title": "", "text": "the language of the contract, which is usually enforced in accordance with the ordinary meaning of the language selected. Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 859 (7th Cir.2002)(Posner, J.); Davis v. G.N. Mortgage Corp., 396 F.3d 869, 878 (7th Cir.2005). The plaintiffs insist that the word “discovery” was intended to mean “constructive knowledge,” while the Noranda defendants contend that it means obtaining knowledge for the first time, in accordance with the ordinary meaning of the term. Constructive knowledge is a concept often employed in determining when a statute of limitations begins to run, and it is cases involving statutes of limitations on which the plaintiffs rely. See Barry Aviation Inc. v. Land O’Lakes Municipal Airport Com’n, 377 F.3d 682, 688 (7th Cir.2004)(a cause of action does not necessarily accrue when the injury occurs but when it is discovered or should have been discovered). Resort to the “discovery rule” is said by the plaintiffs to be dictated by the fact that “[cjonstructive knowledge permeates the field of contract law in many facets.” (Plaintiffs’ Reply Memorandum, at 15). But this overly facile generalization tacitly begs the question, and is more a statement of the obvious than an informative argument. Cf., Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 49 L.Ed. 937 (1905)(Holmes, J., dissenting)(“[G]eneral propositions do not decide concrete cases.”). The presumption that terms be accorded their ordinary meaning, among other things, simplifies the litigation of contract disputes. Beanstalk Group, 283 F.3d at 859. Yet, the interpretation of “discovery” contended for by the plaintiffs would complicate the inquiry by requiring a determination of when the Noranda defendants ought to have discovered their inadvertent production, with the further, unavoidable dispute about what criteria should be used to decide that question. In the statute of limitations context, the inquiry is fact-intensive and almost always a question for the jury. Massey v. United States, 312 F.3d 272, 276 (7th Cir.2002). There is nothing to suggest that in crafting the agreed protective order the parties intended to infuse into that agreement such complexity and uncertainty regarding questions of inadvertent" }, { "docid": "18197883", "title": "", "text": "sustain the defendants’ burden. But there is more. Recognizing the inevitability of mistakes in a case like this, the parties entered into an agreement that defined what was to be done in the event of inadvertent production in discovery; The inadvertent production of any document, thing or information in the Litigation shall be without prejudice to any claim that such material is privileged under the attorney-client privilege, or protected from discovery as work product. No party or entity shall be held to have waived any rights by such inadvertent production so long as the Recipient Party is notified within 30 days of the discovery of such inadvertent production. (Appendix to Plaintiffs’ Motion, Ex. 9, Agreed Protective Order, § 2). The parties agree that the joint protective order was essentially a contract, and rules of contract interpretation govern. Judges have no way of crawling into peoples’ minds; they must act on the basis of external signs. Pos-ner, Overcoming Law, 276 (1995). Thus, the search here, as with other contracts, is for the parties’ intent based on the language of the contract, which is usually enforced in accordance with the ordinary meaning of the language selected. Beanstalk Group, Inc. v. AM General Corp., 283 F.3d 856, 859 (7th Cir.2002)(Posner, J.); Davis v. G.N. Mortgage Corp., 396 F.3d 869, 878 (7th Cir.2005). The plaintiffs insist that the word “discovery” was intended to mean “constructive knowledge,” while the Noranda defendants contend that it means obtaining knowledge for the first time, in accordance with the ordinary meaning of the term. Constructive knowledge is a concept often employed in determining when a statute of limitations begins to run, and it is cases involving statutes of limitations on which the plaintiffs rely. See Barry Aviation Inc. v. Land O’Lakes Municipal Airport Com’n, 377 F.3d 682, 688 (7th Cir.2004)(a cause of action does not necessarily accrue when the injury occurs but when it is discovered or should have been discovered). Resort to the “discovery rule” is said by the plaintiffs to be dictated by the fact that “[cjonstructive knowledge permeates the field of contract law in many facets.”" }, { "docid": "18197882", "title": "", "text": "clients relating to requests for legal advice regarding antitrust and other laws. Accordingly, the attorney-client privilege as to the pages at issue is not waived because the advice was revealed to Noranda and Falconbridge. b. Inadvertent Disclosure Generally, the burden of proving inadvertent disclosure is on the party asserting the privilege. Harmony Gold U.S.A., Inc. v. FASA Corp., 169 F.R.D. 113, 116 (N.D.Ill.1996). That burden has been sustained by the Noranda defendants through the declaration of one of their attorneys regarding the precautions that were taken during the review of the 422 boxes containing approximately 800,000 documents. The 1994 report was produced on four previous occasions, with pages 9-11 redacted. Obviously, the production of the single unredacted copy was inadvertent. Dellwood Farms, Inc. v. Cargill, Inc., 128 F.3d 1122, 1126-27 (7th Cir.1997). Where discovery is extensive, mistakes are inevitable and claims of inadvertence are properly honored so long as appropriate precautions are taken. Golden Valley Microwave Foods, Inc. v. Weaver Popcorn Co., Inc., 132 F.R.D. 204, 207 (N.D.Ind.1990)(14,000 documents). This alone might be enough to sustain the defendants’ burden. But there is more. Recognizing the inevitability of mistakes in a case like this, the parties entered into an agreement that defined what was to be done in the event of inadvertent production in discovery; The inadvertent production of any document, thing or information in the Litigation shall be without prejudice to any claim that such material is privileged under the attorney-client privilege, or protected from discovery as work product. No party or entity shall be held to have waived any rights by such inadvertent production so long as the Recipient Party is notified within 30 days of the discovery of such inadvertent production. (Appendix to Plaintiffs’ Motion, Ex. 9, Agreed Protective Order, § 2). The parties agree that the joint protective order was essentially a contract, and rules of contract interpretation govern. Judges have no way of crawling into peoples’ minds; they must act on the basis of external signs. Pos-ner, Overcoming Law, 276 (1995). Thus, the search here, as with other contracts, is for the parties’ intent based on" }, { "docid": "18175991", "title": "", "text": "will not dismiss them at this stage. a. Legal Standard A claim pursuant to the CEA must be brought “not later than two years after the date the cause of action arises.” 7 U.S.C. § 25(c). The CEA does not elaborate, however, on the circumstances that start the running of its statute of limitations. Where a federal statute “is silent on the issue” of when- a cause of action accrues, as the CEA is, courts apply a “discovery accrual rule” wherein “discovery of the injury, not discovery of the other elements of a claim, is what starts the clock.” Koch v. Christie’s Int’l PLC, 699 F.3d 141, 148-49 (2d Cir.2012) (quoting Rotella v. Wood, 528 U.S. 549, 555, 120 S.Ct. 1075, 145 L.Ed.2d 1047 (2000)) (internal quotation marks omitted) (interpreting the statute of limitations for RICO claims, which requires plaintiffs to bring suit no later than “[four] years after the cause of action accrues,” 28 U.S.C. § 1658(a)); see also Premium Plus Partners, L.P. v. Goldman, Sachs & Co., 648 F.3d 533, 536 (7th Cir.2011) (Easterbrook, C.J.) (“Section 25(c) of the Commodity Exchange Act ... says that suit must be filed within two years of ‘the date the cause of action arises.’ We have understood this to mean the date on which the investor discovers that he has been injured.”). Under Second Circuit precedent, courts apply an “inquiry notice” analysis to determine when a plaintiff has discovered his injury: Inquiry notice — often called “storm warnings” in the securities context— gives rise to a duty of inquiry “when the circumstances would suggest to an investor of ordinary intelligence the probability that she has been defrauded.” In such circumstances, the imputation of knowledge will be timed in one of two ways: (i) “[i]f the investor makes no inquiry once the duty arises, knowledge will be imputed as of the date the duty arose”; and (ii) if some inquiry is made, “we will impute knowledge of what an investor in the exercise of reasonable diligence[] should have discovered concerning the fraud, and in such cases the limitations period begins to run from" }, { "docid": "18197891", "title": "", "text": "making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs,—not on the parties having meant the same thing but on their having said the same thing.”) (Emphasis in original). In sum, the plaintiffs’ interpretation of the term “discovery” has little to commend it: it needlessly complicates the resolution of the dispute and runs counter to the well-establish presumption that words in a contract are accorded their ordinary meaning. It renders the clause in the protective order meaningless, and incorporates a definition that is used only in the absence of the very clause to which the plaintiffs agreed. And finally, it assumes that the parties chose as the appropriate gloss for the word “discovery” not cases involving clauses in protective orders dealing with inadvertent disclosure but with cases involving statutes of limitations. c. The Crime-Fraud Exception Neither the Sixth Amendment nor the attorney-client privilege give a person the right to carry out through counsel an unlawful course of conduct. Georgia v. McCollum, 505 U.S. 42,57, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992). Thus, the attorney-client privilege “does not extend to communications made for the purpose of getting advice for the commission of a fraud or crime.” United States v. Zolin, 491 U.S. 554, 563, 109 S.Ct. 2619, 105 L.Ed.2d 469 (1989); Mattenson v. Baxter Healthcare Corp., 438 F.3d 763, 769 (7th Cir.2006); In re Richard Roe, 68 F.3d 38, 40 (2nd Cir.1995). The exception is not new, Clark v. United States, 289 U.S. 1, 16, 53 S.Ct. 465, 77 L.Ed. 993 (1933)(Cardozo, J.), and its underlying rationale is so basic and important that it extends to privileges other than the attorney-client privilege. See In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71 (1st Cir.1999)(psychotherapist privilege). In Zolin, the Supreme Court clarified the procedure that district courts are to follow in deciding motions to compel production of documents claimed to run afoul of the crime-fraud exception. First the Court resolved a conflict among the circuits by holding that the district court has discretion to conduct" }, { "docid": "18197886", "title": "", "text": "production. Quite the contrary. There would have been no need for the inadvertent production clause if that was their design. The obvious purpose of the protective order was to avoid the uncertainty that would have existed without it. See, e.g., Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., No. 96-1718, 2001 WL 699850, *1 (S.D.Ind. May 29, 2001)(production of 25,000 documents under the mistaken assumption that they had been reviewed and redacted would ordinarily constitute waiver, but protective order foreclosed application of inadvertent production case law); Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96-7590, 1997 WL 736726, *4 (S.D.N.Y. Nov.26, 1997)(parties drafted this provision to provide for the out-of-court resolution of inadvertent production issues and to avoid litigating these issues). See generally, Douglas R. Richmond, Key Issues In The Inadvertent Release And Receipt Of Confidential Information, 12, Def.Couns.J. 110, 117 (April 2005)(recommending use of “claw back” agreements—to be incorporated in judicial orders—where there are large numbers of documents involved). In Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., No. 96-1718, 2001 WL 699850, *1 (S.D.Ind. May 29, 2001), the language of the provision in the protective order was identical to the one at issue here: “No party or entity shall be held to have waived any rights by such inadvertent production so long as the Recipient Party is notified within 30 days of the discovery of such inadvertent production.” 2001 WL 699850, *1. Although the plaintiff produced the documents in December of 2000, and did not notify defendants of its mistake until March 21, 2001, the court found that the plaintiffs could maintain the privilege as to the documents because the plaintiffs did not learn of the inadvertent production until the defendants employed one of the documents in a deposition on March 8, 2001. By informing defendants 13 days later on March 21st, plaintiffs met the 30-day deadline. 2001 WL 699850, *1-2. “Discovery,” then, in the ordinary sense and in the context of protective orders such as that in this ease, means “obtaining knowledge for the first time.” Often the discovery stems from notification from the other side that" }, { "docid": "12717200", "title": "", "text": "the present action was timely filed therefore depends on whether the cause of action was live when Sarbanes-Oxley was enacted. As set forth hereafter, I conclude that plaintiffs have made such a showing and that certainly dismissing the suit on statute of limitations grounds at this point would be premature. Here, the statute of limitations starts to run when the party bringing the action has actual or constructive notice of its cause of action, the latter meaning when “a reasonable investor of ordinary intelligence would have discovered the existence of the fraud.” Dodds v. CIGNA Securities, Inc., 12 F.3d 346, 350 (2d Cir.1993). Inquiry notice in the 10(b)/Rule 10b-5 context, a related concept, does however create a duty to inquire that arises when the circumstances — often called “storm warnings” — “would suggest to an investor of ordinary intelligence the probability that she has been defrauded.” Lentell v. Merrill Lynch & Co., 396 F.3d 161, 168 (2d Cir.2005). However, “the existence of fraud must be a probability not a possibility,” and “whether a plaintiff had sufficient facts to place it on inquiry notice is often inappropriate for resolution on a motion to dismiss.” Id. (internal citations omitted). After the duty to inquire arises, knowledge of a cause of action can actually form in the mind of the investor, or this knowledge can be imputed to the investor in one of two ways: (i) “[i]f the investor makes no inquiry once the duty arises, knowledge will be imputed as of the date the duty arose”; and (ii) if some inquiry is made, “we will impute knowledge of what an investor in the exercise of reasonable diligence[ ] should have discovered concerning the fraud, and in such cases the limitations period begins to run from the date,such inquiry should have revealed the fraud.” Id. (quoting LC Capital Partners, LP v. Frontier Ins. Group, Inc., 318 F.3d 148, 154 (2d Cir.2003)) (internal citations omitted). While this latter method (the “actual inquiry method”) does consider the actual time expended to investigate whether to bring suit, the investor cannot simply extend the statute of limitations" }, { "docid": "3080554", "title": "", "text": "v. Cabot Corp., 352 F.3d 117, 128 (3d Cir.2003) and citing Jewelcor Inc. v. Karfunkel, 517 F.3d 672, 676 n. 4 (3d Cir.2008)). In Pennsylvania, the limitations periods for fraud, negligence, and breach of contract claims are two years, two years, and four years, respectively. 42 Pa. Cons.Stat. §§ 5524(7), 5525(a); see also Ash v. Cont’l Ins. Co., 593 Pa. 523, 932 A.2d 877, 879-80 (2007). “Generally, a statute of limitations period begins to run when a cause of action accrues; i.e., when an injury is inflicted and the corresponding right to institute a suit for damages arises.” Gleason v. Borough of Moosic, 609 Pa. 353, 15 A.3d 479, 484 (2011). When properly invoked, however, the “discovery rule” acts “as an exception to this principle, and provides that where the complaining party is reasonably unaware that his or her injury has been caused by another party’s conduct, the discovery rule suspends, or tolls, the running of the statute of limitations.” Id. “Where ... reasonable minds would not differ in finding that a party knew or should have known on the exercise of reasonable diligence of his injury and its cause, the court determines that the discovery rule does not apply as a matter of law.” Fine v. Checcio, 582 Pa. 253, 870 A.2d 850, 858-59 (2005); accord Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264 F.3d 302, 307 (3d Cir.2001) (quoting Sadtler v. Jackson-Cross Co., 402 Pa.Super. 492, 587 A.2d 727, 732 (1991)). We agree with the District Court that no reasonable factfinder could conclude that Brawner filed within the limitations period. As discussed above, Brawner’s primary interaction with the defendants occurred in the late 1990s; the latest actual transaction he appears to describe occurred in 2005, well outside of the limitations periods for a suit filed in 2011. Brawner insists that the limitations period was tolled until the 2011 “discovery” of the alleged fraud and breach of contract, but this is belied by his knowledge that something was amiss long before 2011; moreover, he makes no showing that the information retrieved in 2011 was essential to the commencement" }, { "docid": "18197888", "title": "", "text": "a mistake has been made. It is in this context, not in the dissimilar and irrelevant context of statute of limitations cases, that the word “discovery” must be construed. Constructive knowledge may permeate the field of contract law in many facets, but protective orders dealing with inadvertent disclosure is not one of them. There is a long tradition of reading contracts sensibly. Beanstalk, supra. Employing the commonly understood definition of discovery makes sense and is consistent with the cases that have dealt with disclosure in the context of a protective order. Acceptance of the construction of the protective order championed by the plaintiffs would be faithless to that tradition and would yield the absurd result that the parties did not seek a simple and predictable mechanism to undo mistakes, but rather intended to employ the complicated and unpredictable calculus required where there was no protective order, thereby defeating the purpose of the inadvertent production clause and rendering it sur-plusage. What Judge Easterbrook said in Metro East Center for Conditioning and Health v. Qwest Communications Internat’l, Inc., 294 F.3d 924 (7th Cir.2002) applies here pari passu: [I]t is almost never right to read legal language as self-defeating.... People draft documents to achieve some objective, and although the meaning of words can be elusive even after taking into account both linguistic and economic contexts, and some words may turn out to be redundant or otherwise carry no weight. It is not sensible to construe a substantial passage of a legal text as pointless. Cf., Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 64, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995). Perhaps when they agreed to the language of the protective order the plaintiffs’ counsel had in mind a definition of discovery that differed from the commonly understood definition; it matters not at all: A signatory to a contract is bound by its ordinary meaning even if he gave it an idiosyncratic one; private intent counts only if it is conveyed to the other party and shared. [Citations omitted]. You can’t escape contractual obligation by signing with your fingers crossed behind your" }, { "docid": "17711016", "title": "", "text": "of limitations, as interpreted by the Illinois Supreme Court. 735 Ill. Comp. Stat. 5/13-205. See Commonwealth Ins. Co. v. Stone Container Corp., 323 F.3d 507, 509 (7th Cir.2003). Because CIT filed its complaint on May 7, 2007, the claims for which it seeks relief must have accrued no earlier than May 7, 2002. We review de novo the district court’s dismissal of CIT’s claims as barred by the statute of limitations. Dominguez v. Hendley, 545 F.3d 585, 588 (7th Cir.2008). The disputed issue is when CIT’s claims against Maxwell accrued and triggered the running of the limitations period. Illinois follows the general rule that tort claims arising from a contract accrue when the contract is breached, whereas most tort claims accrue when the plaintiff sustains an injury. Hermitage Corp. v. Contractors Adjustment Co., 166 Ill.2d 72, 209 Ill.Dec. 684, 651 N.E.2d 1132, 1135 (1995). But courts also have a discovery rule to protect those who are unaware of their right to sue, “to encourage the trial of cases on their merits and avoid premature summary dismissals.” Superior Bank FSB v. Golding, 152 Ill.2d 480, 178 Ill.Dec. 720, 605 N.E.2d 514, 518 (1992). The discovery rule delays the accrual of claims until the plaintiff reasonably should know that he has been injured and that the injury was wrongfully caused. Id. A plaintiffs knowledge that his injury was wrongfully caused does not necessarily mean knowledge of actionable conduct. Knox Coll. v. Celotex Corp., 88 Ill.2d 407, 58 Ill.Dec. 725, 430 N.E.2d 976, 980-81 (1981). The cause of action accrues and the limitations period begins to run when “the injured person becomes possessed of sufficient information concerning his injury and its cause to put a reasonable person on inquiry to determine whether actionable conduct is involved.” Id. In addition, in Illinois, the party seeking to utilize the discovery rule bears the burden of proving the date of discovery. Hermitage, 209 Ill.Dec. 684, 651 N.E.2d at 1138. In this case, CIT’s claims accrued before May 7, 2002, and thus are barred by the statute of limitations. CIT maintains that, as trustee of the bankrupt" }, { "docid": "18197890", "title": "", "text": "back, even if that clearly shows your intent not to be bound. The parties are free to sign hortatory as well as binding documents; “intent” is important in the sense that if the parties agree on a hortatory instrument the court may not convert it into a different kind. This sense of “intent” denotes agreement between the parties and is not a license to allow undisclosed intent to dominate. Even statutes, widely said to follow the “intent of the legislature”, draw meaning only from visible indicators such as their structure, the nature of the problem at hand, public statements (as in committee reports), Private intent is irrelevant. [Citation omitted]. So it is here. Lynch may have had a private intent, but the signs visible to the union all pointed to Lynch’s acceptance of the collective bargaining agreement. Lynch is bound by its terms. Robbins v. Lynch, 836 F.2d 330 (7th Cir.1988). See also ConFold Pacific, Inc. v. Polaris Ind., 433 F.3d 952 (7th Cir.2006); Holmes, The Path Of The Law, 10 Harv. L.Rev. 457 (1896)(“the making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs,—not on the parties having meant the same thing but on their having said the same thing.”) (Emphasis in original). In sum, the plaintiffs’ interpretation of the term “discovery” has little to commend it: it needlessly complicates the resolution of the dispute and runs counter to the well-establish presumption that words in a contract are accorded their ordinary meaning. It renders the clause in the protective order meaningless, and incorporates a definition that is used only in the absence of the very clause to which the plaintiffs agreed. And finally, it assumes that the parties chose as the appropriate gloss for the word “discovery” not cases involving clauses in protective orders dealing with inadvertent disclosure but with cases involving statutes of limitations. c. The Crime-Fraud Exception Neither the Sixth Amendment nor the attorney-client privilege give a person the right to carry out through counsel an unlawful course of conduct. Georgia v." }, { "docid": "18197915", "title": "", "text": "and the crime-fraud exception require disclosure. But, the No-randa defendants appear to have complied with the terms of the protective order’s requirement of timely notice of the discovery of the inadvertent production. Plaintiffs do not even attempt to suggest when the Noranda defendants ought to have discovered their mistake, which is the standard the plaintiffs (incorrectly) seek to apply. As for the crime-fraud exception, the pages at issue reflect impliedly client conversations regarding requests for legal advice on how to comply with antitrust laws. Accordingly, even if plaintiffs had made out the required prima facie case-—-and they did not, as discussed earlier—the crime-fraud exception would not apply- 4. Sulphuric Acid Product Knowledge Review This document is a portion of a PowerPoint presentation prepared by the Noran-da Metallurgy Inc. Sulphuric Acid Marketing Group. The Noranda defendants claim privilege as to one “slide,” which is captioned “Business environment-legal considerations.” (Appendix to Plaintiffs Motion, Ex. 13). The plaintiffs argue that the page is not privileged for the same reasons they advanced as to the previous document. (Mem orandum in Support of Plaintiffs’ Motion, at 10). As such, those arguments are again rejected. 5. Documents Produced to the Government The Noranda defendants produced a raft of documents to the Department of Justice pursuant to subpoena in 1998 thereby waiving any claim of privilege. Rather they argue that the production was inadvertent, as they informed the plaintiffs by letter on February 2, 2005. (Appendix to Plaintiff’s Motion, Ex. 14). Since the protective order offers no protection to the unobjeeted-to response to the government’s subpoena and with little in the way of argument from the Noranda defendants on the circumstances of the claimed inadvertancy of the turnover to the Department of Justice, the privilege is waived, and the documents must be produced to the plaintiffs. 6. Other Inadvertently Produced Documents Plaintiffs challenge on two grounds the Noranda defendants’ claims of privilege as to a number of other documents or redacted portions thereof the Noranda defendants produced in discovery and then sought to claim were privileged in whole or in part as “inadvertently produced.” They argue, first," }, { "docid": "10678771", "title": "", "text": "United Airlines, Inc., 236 F.3d 368, 373 (7th Cir.2001); Paige v. Police Department, supra, 264 F.3d at 199-200. The plaintiffs mistakenly contend that a limitations period does not begin to run until the precomplaint investigation is complete, which may not have been until 2005, three years before they sued. Actually it starts running when the prospective plaintiff discovers (or should if diligent have discovered) both the injury that gives rise to his claim and the injurer or (in this case) injurers. See United States v. Kubrick, 444 U.S. 111, 123-24, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), and United States v. Norwood, 602 F.3d 830, 837 (7th Cir. 2010), and with specific reference to the RICO limitations period Barry Aviation Inc. v. Land O’Lakes Municipal Airport Commission, 377 F.3d 682, 688 (7th Cir. 2004); Prudential Ins. Co. v. United States Gypsum Co., supra, 359 F.3d at 233, and Pincay v. Andrews, 238 F.3d 1106, 1108-09 and n. 3 (9th Cir.2001). The plaintiffs had discovered or should have discovered these things by the summer of 2003. Armed with the information obtained by then they should have been able to complete well within the four-year statutory period an investigation that would have unearthed enough facts to enable them to file a suit that would withstand dismissal. See United States v. Kubrick, supra, 444 U.S. at 122, 100 S.Ct. 352; Lukovsky v. City & County of San Francisco, 535 F.3d 1044, 1049-51 (9th Cir. 2008); Wastak v. Lehigh Valley Health Network, 342 F.3d 281, 287-88 and n. 2 (3d Cir.2003). They could then have used pretrial discovery to beef up their claim. A plaintiff is not required to have collected, before he files suit, all the evidence he needs in order to win the suit. Otherwise the civil procedure rules would have to authorize precomplaint discovery rather than just pretrial discovery. In the case of suits under RICO, as Barry Aviation and the other cases cited above explain, the injury arising from the first predicate act to injure the plaintiff (“predicate acts” are the illegal acts committed by the racketeering enterprise) starts the" }, { "docid": "18197887", "title": "", "text": "(S.D.Ind. May 29, 2001), the language of the provision in the protective order was identical to the one at issue here: “No party or entity shall be held to have waived any rights by such inadvertent production so long as the Recipient Party is notified within 30 days of the discovery of such inadvertent production.” 2001 WL 699850, *1. Although the plaintiff produced the documents in December of 2000, and did not notify defendants of its mistake until March 21, 2001, the court found that the plaintiffs could maintain the privilege as to the documents because the plaintiffs did not learn of the inadvertent production until the defendants employed one of the documents in a deposition on March 8, 2001. By informing defendants 13 days later on March 21st, plaintiffs met the 30-day deadline. 2001 WL 699850, *1-2. “Discovery,” then, in the ordinary sense and in the context of protective orders such as that in this ease, means “obtaining knowledge for the first time.” Often the discovery stems from notification from the other side that a mistake has been made. It is in this context, not in the dissimilar and irrelevant context of statute of limitations cases, that the word “discovery” must be construed. Constructive knowledge may permeate the field of contract law in many facets, but protective orders dealing with inadvertent disclosure is not one of them. There is a long tradition of reading contracts sensibly. Beanstalk, supra. Employing the commonly understood definition of discovery makes sense and is consistent with the cases that have dealt with disclosure in the context of a protective order. Acceptance of the construction of the protective order championed by the plaintiffs would be faithless to that tradition and would yield the absurd result that the parties did not seek a simple and predictable mechanism to undo mistakes, but rather intended to employ the complicated and unpredictable calculus required where there was no protective order, thereby defeating the purpose of the inadvertent production clause and rendering it sur-plusage. What Judge Easterbrook said in Metro East Center for Conditioning and Health v. Qwest Communications Internat’l," }, { "docid": "2923396", "title": "", "text": "may be brought for all acts that accrued within the three years preceding the filing of the suit.” Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (9th Cir.1994). Graham, as noted above, filed this action on February 8, 2005. Consequently, under ordinary circumstances, the statute of limitations would bar any of Graham’s copyright claims that accrued prior to February 9, 2002. Courts have recognized that fairness dictates that the limitations period be tolled under certain circumstances. See Bohus v. Beloff, 950 F.2d 919 (3d Cir.1991). Prior to trial in this case, our predecessor, the late Judge Clarence C. Newcomer, held that the discovery rule applies to claims for copyright infringement, including this one. Aug. 15, 2005 Order of Judge Newcomer (Docket Entry 31); Mem. Op. of Nov. 21, 2006 at 25-26. Under that rule, the statute of limitations on a copyright claim is tolled until “the moment [the copyright owner] has knowledge of the violation or is chargeable with such knowledge.” Id; Polar Bear Productions, Inc. v. Timex Corp., 384 F.3d 700, 706-07 (9th Cir.2004). The determination of when knowledge will be imputed to a party under the terms of the discovery rule is presumptively a question for the jury but may be decided as a matter of law when the party invoking the rule does not present sufficient proof to send the issue to a jury. See Smith-Haynie v. District of Columbia, 155 F.3d 575, 579 (D.C.Cir.1998); Bohus, 950 F.2d at 925. Proving the applicability of the statute of limitations usually falls on the defendant as an affirmative defense. See Fed.R.Civ.P. 8(c). When, however, as here, a plaintiff seeks the benefit of the discovery rule, the burden shifts to it to prove that in the exercise of reasonable diligence it should not have discovered the infringement before the statutory bar, in this case, February 9, 2002. See Gould v. U.S. Dep’t of Health and Human Services, 905 F.2d 738, 745-46 (4th Cir.1990). Graham introduced evidence that defendants began their acts of infringement as far back as 1992. It is well settled in continuing infringement eases such as" }, { "docid": "11727915", "title": "", "text": "he discovers he has been injured.” See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.1990). “This principle is based on the general rule that accrual occurs when the plaintiff discovers that ‘he has been injured and who caused the injury.’ ” Barry Aviation, Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 688 (7th Cir.2004) (quoting United States v. Duke, 229 F.3d 627, 630 (7th Cir.2000) (emphasis in original)). Plaintiffs discovered that they had suffered some kind of injury on June 13, 1996, when Sumitomo announced that it had incurred almost $1.8 billion in losses from its illegal activities. At this point, the plaintiffs knew that their businesses had been injured by Sumitomo's actions, but they did not know that Morgan might also be liable. As the district court noted, however, several articles indicated that Morgan had financed Sumitomo’s copper transactions. The district court thought that the plaintiffs should have suspected Morgan’s possible culpability by July 23, the date when the Associated Press reported that Morgan and other banks were under investigation by the Commodities Futures Trading Commission (CFTC), because by this date, “plaintiffs had enough information to trigger their obligation to make further inquiry.” The court concluded that whether it applied the discovery rule to when the claim accrued or the fraudulent concealment doctrine to toll the statute of limitations, by July 23 the plaintiffs “knew enough to suspect a violation that they could have detected with due diligence.” Absent any alleged wrongdoing on Morgan’s part, the court thought that the plaintiffs should have known of Morgan’s liability too. The problem is that in making its determination, the court never explained what facts the plaintiffs’ diligent inquiries would have revealed. (Sumitomo, it should go without saying, was in a different position; as a party to the deals with Morgan, it had access to information that was not accessible to outsiders.) The court cites several articles that mentioned Morgan and its loans to Sumitomo in June and July 1996, none of which indicated that Morgan’s actions were unlawful or even that Morgan knew about Sumitomo’s fraudulent" }, { "docid": "10678770", "title": "", "text": "suit was filed. By the summer of 2003 at the latest, despite (and in part because of) the defendants’ obstructive behavior, the plaintiffs knew that Cochonour had looted the Jay Hayden estate and that the bank’s employees were trying to prevent further investigation of Cochonour, on the implausible, suspicion-arousing grounds that everything would be explained in due course and that further exposure of skullduggery would injure Cumberland County’s good name. If the plaintiffs didn’t yet have enough information to be able to sue, they did by 2005, when Cochonour was deposed and made (in the words of the complaint) “detailed exhaustive admissions of repeated forgeries and thefts involving the M & M account and the Estate of Jay E. Hayden and the fact that all annual reports submitted ... in February 2002 to the Trustees were false and misleading.” And while Cochonour “continued to assert that all such actions were done by him alone,” the plaintiffs knew better and so knew enough to sue his accomplices despite his and their continued stonewalling. Cf. Sharp v. United Airlines, Inc., 236 F.3d 368, 373 (7th Cir.2001); Paige v. Police Department, supra, 264 F.3d at 199-200. The plaintiffs mistakenly contend that a limitations period does not begin to run until the precomplaint investigation is complete, which may not have been until 2005, three years before they sued. Actually it starts running when the prospective plaintiff discovers (or should if diligent have discovered) both the injury that gives rise to his claim and the injurer or (in this case) injurers. See United States v. Kubrick, 444 U.S. 111, 123-24, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), and United States v. Norwood, 602 F.3d 830, 837 (7th Cir. 2010), and with specific reference to the RICO limitations period Barry Aviation Inc. v. Land O’Lakes Municipal Airport Commission, 377 F.3d 682, 688 (7th Cir. 2004); Prudential Ins. Co. v. United States Gypsum Co., supra, 359 F.3d at 233, and Pincay v. Andrews, 238 F.3d 1106, 1108-09 and n. 3 (9th Cir.2001). The plaintiffs had discovered or should have discovered these things by the summer of 2003." }, { "docid": "18197885", "title": "", "text": "(Plaintiffs’ Reply Memorandum, at 15). But this overly facile generalization tacitly begs the question, and is more a statement of the obvious than an informative argument. Cf., Lochner v. New York, 198 U.S. 45, 76, 25 S.Ct. 539, 49 L.Ed. 937 (1905)(Holmes, J., dissenting)(“[G]eneral propositions do not decide concrete cases.”). The presumption that terms be accorded their ordinary meaning, among other things, simplifies the litigation of contract disputes. Beanstalk Group, 283 F.3d at 859. Yet, the interpretation of “discovery” contended for by the plaintiffs would complicate the inquiry by requiring a determination of when the Noranda defendants ought to have discovered their inadvertent production, with the further, unavoidable dispute about what criteria should be used to decide that question. In the statute of limitations context, the inquiry is fact-intensive and almost always a question for the jury. Massey v. United States, 312 F.3d 272, 276 (7th Cir.2002). There is nothing to suggest that in crafting the agreed protective order the parties intended to infuse into that agreement such complexity and uncertainty regarding questions of inadvertent production. Quite the contrary. There would have been no need for the inadvertent production clause if that was their design. The obvious purpose of the protective order was to avoid the uncertainty that would have existed without it. See, e.g., Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., No. 96-1718, 2001 WL 699850, *1 (S.D.Ind. May 29, 2001)(production of 25,000 documents under the mistaken assumption that they had been reviewed and redacted would ordinarily constitute waiver, but protective order foreclosed application of inadvertent production case law); Prescient Partners, L.P. v. Fieldcrest Cannon, Inc., No. 96-7590, 1997 WL 736726, *4 (S.D.N.Y. Nov.26, 1997)(parties drafted this provision to provide for the out-of-court resolution of inadvertent production issues and to avoid litigating these issues). See generally, Douglas R. Richmond, Key Issues In The Inadvertent Release And Receipt Of Confidential Information, 12, Def.Couns.J. 110, 117 (April 2005)(recommending use of “claw back” agreements—to be incorporated in judicial orders—where there are large numbers of documents involved). In Cardiac Pacemakers, Inc. v. St. Jude Medical, Inc., No. 96-1718, 2001 WL 699850, *1" }, { "docid": "11727914", "title": "", "text": "address the question of accrual. Whether the district court selected the proper accrual date depends on the application of the discovery rule to these facts. As an initial matter, plaintiffs’ antitrust claims are subject to a four-year statute of limitations. 15 U.S.C. § 15b; see also Zenith Radio Corp. v. Hazeltine Research, Inc., 401 U.S. 321, 338, 91 S.Ct. 795, 28 L.Ed.2d 77 (1971) (“The basic rule is that damages are recoverable under the federal antitrust acts only if suit therefor is ‘commenced within four years after the cause of action accrued’.... ” (quoting 15 U.S.C. § 15b)). Generally, an antitrust “cause of action accrues and the statute begins to run when a defendant commits an act that injures a plaintiffs business.” Zenith, 401 U.S. at 338, 91 S.Ct. 795. As in other areas of the law, however, in the absence of a contrary directive from Congress this rule is qualified by the discovery rule, which “postpones the beginning of the limitations period from the date when the plaintiff is wronged to the date when he discovers he has been injured.” See Cada v. Baxter Healthcare Corp., 920 F.2d 446, 450 (7th Cir.1990). “This principle is based on the general rule that accrual occurs when the plaintiff discovers that ‘he has been injured and who caused the injury.’ ” Barry Aviation, Inc. v. Land O’Lakes Mun. Airport Comm’n, 377 F.3d 682, 688 (7th Cir.2004) (quoting United States v. Duke, 229 F.3d 627, 630 (7th Cir.2000) (emphasis in original)). Plaintiffs discovered that they had suffered some kind of injury on June 13, 1996, when Sumitomo announced that it had incurred almost $1.8 billion in losses from its illegal activities. At this point, the plaintiffs knew that their businesses had been injured by Sumitomo's actions, but they did not know that Morgan might also be liable. As the district court noted, however, several articles indicated that Morgan had financed Sumitomo’s copper transactions. The district court thought that the plaintiffs should have suspected Morgan’s possible culpability by July 23, the date when the Associated Press reported that Morgan and other banks were under" } ]

[ { "docid": "10147368", "title": "", "text": "use permit has been appealed to the Circuit Court for Prince William County, Virginia. Distilled to their essence, the complaint’s allegations amount to the following: (i) That Detective Lugo held a grudge against David Ruttenberg and thus conspired with Detective White, Chief Evans, Mayor Jones, and Kifer to harm David Ruttenberg’s business by causing the loss of Triple D’s ABC license and the denial of Triple D’s attempt to renew its conditional use permit; (ii) To accomplish this goal, defendants conspired to facilitate undercover drug transactions at RNR so that the ABC Board would have evidence sufficient to revoke RNR’s license; (iii) In this regard, Detective White, acting undercover, arranged to enter into 8 drug transactions on the premises of RNR; (iv) Then, Detective Lugo conspired with others to raid RNR under the guise of an ABC administrative search; (v) This raid uncovered four ABC violations: (a) disorderly conduct (specifically, three incidents of female patrons at RNR exposing then-breasts); (b) RNR’s role as a meeting place or rendezvous for users of narcotics/drunks/etc.; (c) the presence of unauthorized alcoholic beverages on RNR premises; and (d) consumption of alcoholic beverages on RNR premises by an underage individual; (vi)Based on these violations, the ABC Board revoked Triple D’s ABC license and the Manassas Park City Council elected not to renew Triple D’s conditional use permit. Based on these allegations, on June 1, 2006, plaintiffs filed the instant complaint alleging several causes of action against defendants, namely: (i) Count I (Against All Defendants): Violation of Substantive Due Process Rights in Connection With Deprivation of Property Interests Under Color of State Law Under 42 U.S.C. § 1983; (ii) Count II (Against Defendants Evans, Lugo, White, Kifer, and the City of Manassas Park, Not Defendant Jones): Deprivation of First Amendment Rights Under Color of State Law Under 42 U.S.C. § 1983; (iii) Count III (Against Defendants Evans, Lugo, White, Kifer, and the City of Manassas Park, Not Defendant Jones): Deprivation of Fourth Amendment Rights Under Color of State Law Under 42 U.S.C. § 1983; (iv) Count IV (Against Defendants Jones, Evans, Lugo, White, and the City" } ]

[ { "docid": "13400216", "title": "", "text": "MEMORANDUM OPINION AND ORDER NORDBERG, District Judge. I. INTRODUCTION The plaintiffs — John, Beryl, and Robert Gerdes — have brought this diversity suit alleging various state-law claims arising out of their purchase of certain life insurance policies. The plaintiffs’ amended complaint includes counts for reformation of the contracts against John Hancock Life Insurance Co. (Hancock) (Count I); for violations of the Illinois Consumer Fraud and Deceptive Business Practices Act, IlhRev. Stat. ch. 121%, para. 262 (1987), against Hancock, Frank Clegg, Michael Sekara, and Raymond Jones (Counts II, IV, VII, and X, respectively); for common law fraud against Hancock, Clegg, Sekara, and Jones (Counts III, V, VIII, and XI, respectively); and for negligent misrepresentation against Clegg, Sekara, and Jones (Counts VI, IX, and XII, respectively). In essence, the plaintiffs allege that they bought the Hancock life insurance policies after Jones, as an agent of the Columbus General Agency (the insurance marketing company of Clegg and Sekara), made certain misrepresentations to the plaintiffs regarding the costs of maintaining the policies; Hancock, however, allegedly refused to comply with the terms and conditions as represented during the sale of the policies. Clegg, Sekara, and Jones have moved pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss Counts VI, IX, and XII for failure to state a claim for negligent misrepresentation. In addition, Clegg has moved pursuant to Rule 9(b) to dismiss Counts IV and V for failure to plead fraud with particularity. For the following reasons, the court grants the defendants’ motions to dismiss Counts VI, IX, and XII for failure to state a claim upon which relief can be granted, but denies Clegg’s motion to dismiss Counts IV and V for failure to comply with the specificity requirement of Rule 9(b). II. FACTS For purposes of a motion to dismiss, the court must accept as true all well-pleaded factual allegations in the complaint and must draw all reasonable inferences in the light most favorable to the plaintiffs. Powe v. City of Chicago, 664 F.2d 639, 642 (7th Cir.1981). A complaint should not be dismissed for failure to state a cause of action" }, { "docid": "102763", "title": "", "text": "¶ 51. Bay then “discovered that Bell had secretly entered into an agreement with [sic] a Continental, and never had any intention of manufacturing any cigarettes for Bay Tobacco after September/October 2002.” Id. ¶ 52. Bay alleges that as a part of this secret agreement Bell’s owner, Jim Heflin, instructed Bell to manufacture only for Defendant Continental and not for Bay. Id. ¶ 53. Consequently, Plaintiff avers that Bell forced Bay out of business. Id. ¶ 54. Bay alleges that, since then, its packaging materials and other items of its personal property that are in the possession of Bell Quality have not been returned. Id. ¶¶ 24, 56. III. Causes of Action Plaintiff asserts claims against Defendant Continental for civil and statutory conspiracy in violation of Va.Code §§ 18.2-499, -500 (Count I); tortious interference with business (Count II); and defamation (Count VI). In addition to Counts I, II and VI, Bay asserts claims against Defendant Bell including actual and constructive common law fraud (Count III); conversion (Count IV); violation of confidentiality (Count V); and breach of contract (Count VII). TV. Defendants’ Motions to Dismiss On February 10, 2003, each defendant filed a motion to dismiss for lack of personal jurisdiction and a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). This Court must resolve the jurisdictional issues before proceeding to the issue of whether the plaintiff has stated any valid causes of action. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 93-102, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). A. In Personam Jurisdiction As the Fourth Circuit has recognized, an analysis of personal jurisdiction is normally a two-step inquiry consisting of both statutory and constitutional components. Peanut Corp. of Am. v. Hollywood Brands, Inc., 696 F.2d 311, 313 (4th Cir. 1982). In the instant action, because neither defendant is a resident of the Commonwealth of Virginia, the Court may only exercise jurisdiction if Plaintiff Bay Tobacco can establish, first, that each defendant’s contacts with Virginia satisfy the Virginia long-arm statute (Va.Code § 8.01-328.1), and, second, that the statutory assertion of jurisdiction is consistent" }, { "docid": "3575023", "title": "", "text": "Code. George L. Miller was appointed trustee (the “Trustee”). II. PROCEDURAL HISTORY On September 26, 2006, the Trustee filed a Complaint against the MDC Defendants, Naples (an MDC employee and former director of the Parent Debtor), and Winstead. On October 3, 2006, the Complaint was amended. The Complaint contained counts against all Defendants for breach of fiduciary duty, aiding and abet ting breach of fiduciary duty, fraudulent and/or voidable transfers, deepening insolvency, civil conspiracy, and declaratory relief. There was a separate count for corporate waste against the MDC Defendants and Naples. On November 27, 2006, the MDC Defendants and Winstead filed motions to dismiss the Complaint. On December 1, 2006, Naples filed a motion to dismiss and a joinder in the other motions. The Trustee opposed the motions. On June 5, 2007, the Court issued an Opinion (the “June 2007 Opinion”) which: (i) denied the MDC Defendants’ and Naples’ motions to dismiss on standing grounds; (ii) denied the motions to dismiss the breach of fiduciary duty and aiding and abetting claims (Counts I and II); (iii) granted the motions and dismissed without leave to replead the Trustee’s fraudulent transfer claim against the MDC Defendants for recovery of the $18 million paid to TIAA; (iv) granted the motions and dismissed with leave to replead the Trustee’s claims for actual and constructive fraud for recovery of the $1.7 million payment made to certain MDC Defendants for advisory fees; (v) denied the motion to dismiss the preferential transfer claim against the MDC Defendants, but granted the motion and dismissed the same count as to the individual Defendants (McCown, Heilman, and Naples); (vi) denied the motion to dismiss the corporate waste claim against the MDC Defendants and Naples; (vii) deferred ruling on the motion to dismiss the aiding and abetting fraudulent transfers and deepening insolvency claims pending a decision by the Delaware Supreme Court clarifying Delaware state law; (viii) granted the motion to dismiss the civil conspiracy and aiding and abetting civil conspiracy claims against the MDC Defendants, Naples, and Winstead, but granted the Trustee leave to amend his complaint to state civil conspiracy" }, { "docid": "10147370", "title": "", "text": "of Manassas Park, Not Defendant Kifer): Violation of Equal Protection Clause Rights in Connection With Deprivation of Property Interests Under Color of State Law Under 42 U.S.C. § 1983; (v) Count V (Against Defendants Jones, Evans, Lugo, White, and Kifer, Not Defendant City of Manassas Park): Conspiracy to Violate Plaintiffs’ Sub stantive Due Process, Equal Protection Clause, First Amendment, and Fourth Amendment Rights in Violation of 42 U.S.C. § 1983; (vi) Count VI (Against Defendants Jones, Evans, Lugo, White, and Ki-fer, Not Defendant City of Manas-sas Park): Tortious Interference With Contract; (vii) Count VII (Against Defendants Jones, Evans, Lugo, White, and Ki-fer, Not Defendant City of Manas-sas Park): Common Law Civil Conspiracy; and (viii) Count VIII (Against Defendants Jones, Evans, Lugo, White, and Kifer, Not Defendant City of Ma-nassas Park): Business Conspiracy in Violation of VA Code Ann. §§ 18.2-499,18.2-500. Defendants have moved to dismiss these claims for failure to state a claim or, in the alternative to abstain or stay this matter pending resolution of plaintiffs’ appeals of the ABC license and conditional use permit decisions. II. The standard to be applied in deciding a motion to dismiss is well-established. Dismissal for failure to state a claim under Rule 12(b)(6), Fed.R.Civ.P. is only appropriate where, construing the allegations in the light most favorable to the plaintiffs and assuming the facts alleged to be true, it is clear as a matter of law that no relief could be granted under any set of facts that could be proved consistent with the allegations of the complaint. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Revene v. Charles County Comm’rs, 882 F.2d 870, 872 (4th Cir.1989). While the facts alleged in the complaint are assumed true, any unwarranted inferences, unreasonable conclusions, or arguments, need not be accepted. See generally 5A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 1357 (2d ed. 1990 & 1998 Supp.). A. Count I In Count I, plaintiffs contend that they have a constitutionally protected property interest in the continued ownership and operation of RNR, and" }, { "docid": "20596617", "title": "", "text": "bring a claim against the District of Columbia related to access to the leased property. Prior to May 2014, the Municipal Fish Market could be accessed by vehicular and pedestrian foot traffic via Water Street. Id. ¶¶ 57, 69-70. On June 7, 2011, the Council of the District of Columbia passed Bill 19-69, “Closing of Water Street, S.O. 10-15906 Act of 2011,” and the Mayor of the District signed the bill on June 28, 2011. Id. ¶¶63, 65, 68. Water Street remained in public use until May 2014 when it began to be periodically closed. Id. ¶¶ 69-70. On November 2014, a hole was dug in the location where Water Street was located. Id. ¶ 71. Plaintiffs allege “[b]y closing Water Street, the primary entrance to the Municipal Market was eliminated.” Id. ¶ 72. In their Complaint, Plaintiffs raise one claim against the District, a Fifth Amendment Takings Clause claim (Count I). Plaintiffs also raise eight state and common law claims against the Developer Defendants: declaratory judgment (Count II); specific performance and injunctive relief based on breach of lease (Count III); damages based on breach of lease (Count IV); breach of the covenant of good faith and fair dealings (Count V); trespass and conversion (Count VI); nuisance (Count VII); tortious interference with prospective business advantage (Count VIII); and unjust enrichment (Count IX). Defendants now move the Court to dismiss all of Plaintiffs’ claims. II. LEGAL STANDARD Pursuant to Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss 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). The Federal Rules of Civil Procedure require that a complaint contain “ ‘a short and plain statement of the claim showing that the pleader is entitled to relief,’ 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) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957));" }, { "docid": "10147366", "title": "", "text": "patrons and employees were detained and searched. Additionally, David Ruttenberg’s private office, which plaintiffs contend is not subject to the ABC permit, was searched by unidentified officers. The night of the raid, David Ruttenberg, accompanied by a friend who was a police officer on sabbatical from Prince William County Police Department, went to the Northern Virginia Electrical Coop to pay RNR’s electric bill. Upon arriving at the parking lot, plaintiffs claim that two Prince William County police cruisers blocked David Ruttenberg’s car, and then emerged from the police cruisers with weapons drawn and pointed at David Ruttenberg and his friend. Once David Ruttenberg’s friend identified himself, the officers immediately withdrew. Plaintiffs allege these officers were members of the Narcotics Task Force acting at the direction of Detective Lugo. At this time, plaintiffs further claim that Mayor Jones and Chief Evans began patrolling the area around RNR to obtain information about alleged illegal activity occurring at RNR. Specifically, David Rut-tenberg claims that he and others observed defendant Mayor Jones outside RNR at odd hours of the night, including past midnight on numerous occasions. As a result of the raid, the ABC Board identified four violations at RNR: (i) disorderly conduct (based on information provided by Detective White that on three occasions female patrons exposed their breasts); (ii) meeting or rendezvous for users of nareotics/drunks/etc.; (iii) kept or allowed to be kept unauthorized alcoholic beverages; and (iv) consumption of alcoholic beverages by a person less than (21) years of age. Based on these violations, in late 2005, the ABC Board held an eviden- tiary hearing and revoked Triple D’s ABC license. Plaintiffs do not allege here that they were denied due process during the ABC hearing; rather, they contend that the revocation of the ABC license stemmed from the “intentional, illegal, conscience shocking actions of’ the defendants. Then, in 2006 the Manassas Park City Council voted to deny Triple D’s request to renew its conditional use permit. Both decisions are currently on appeal, the revocation of the ABC license has been appealed to the ABC Board and the denial of the conditional" }, { "docid": "764994", "title": "", "text": "(claiming damages for the unlawful detention of his property) and conversion (requesting the return of the stolen items). Therefore, defendants’ motion to dismiss Count VIII must be denied. Ill Conclusion In conclusion, we grant defendants’ Rule 12(b)(6) motion with respect to three counts of plaintiff’s eight-count complaint. Count I, wherein plaintiff alleges a private conspiracy to deprive him of his civil rights and seeks relief under 42 U.S.C. § 1985(c), is fatally defective because plaintiff has failed to allege a sufficient class-based animus for the conspiracy, and because there is no constitutional authorization for reading § 1985(c) to reach the instant case. Count II is similarly defective because Va.Code § 18.2-500 provides no civil relief for harm done to plaintiff’s personal reputation. Finally, Count VI must be dismissed because Virginia law recognizes no common law right to sue for invasion of privacy. We deny defendants’ motion to dismiss the entire complaint at this time for want of subject matter jurisdiction, however, determining that diversity jurisdiction may well support the bringing of plaintiff’s state claims in federal court. We postpone any final decision on the diversity question until the time for serving defendants with process has elapsed and the citizenship of any served “John Doe” defendants can be ascertained. Thus, defendants’ motion to dismiss with respect to Counts I, II and VI is GRANTED. Defendants’ motion to dismiss with respect to the remaining counts (II, IV, V, VII and VIII) is DENIED. In addition, those persons served with process but named as defendants only with respect to Count I are DISMISSED as parties to this suit: Thomas James Ward, Mary Ward, Maureen Winifred Ward, Marty Ward, Lawrence V. Conroy, Joan Conroy, John Conroy, Mary Conroy and Mary Carol Williams." }, { "docid": "450382", "title": "", "text": "(Count 1) and Pennsylvania law (Count 8); (ii) due process violations (Count 2); (in) violating his right against self-incrimination (Count 3); (iv) civil rights conspiracy (Count 4); (v) failure to intervene (Count 5); (vi) supervisory liability (Count 6); and (vii) municipal liability (Count 7). Defendants have moved to dismiss (i) Counts 2-4 on statute of limitations grounds; (ii) Count 7 for failure to sufficiently plead a Monell claim; and (iii) all claims against Detectives David Baker, Dennis Dusak, and Eugene Wyatt for failure to state a claim. Because the Court concludes that Mr. Wright’s claims did not accrue until after the criminal proceedings against him were favorably terminated, and because Mr. Wright has stated plausible claims for relief against the City and Detectives Baker, Dusak, and Wyatt, the Court will deny the motion in its entirety. II. Allegations in the Complaint On October 18, 1991, 77 year-old Louise Talley was raped and murdered in her North Philadelphia home. While DNA evidence would eventually exonerate Mr. Wright, and conclusively implicate an individual named Ronnie Byrd, Mr. Wright was wrongfully convicted of Ms. Talley’s rape and murder and served 25 years in prison. Officers Dennis Dusak, Manuel Santiago, and Thomas Burke (the “on-scene Defendants”) were the first officers to arrive at the crime scene. Detective Dusak, as the lead detective, was responsible for overseeing the investigation of Ms. Talley’s rape and murder. The on-scene Defendants’ initial review of the crime scene revealed (i) that Ms. Talley was stabbed to death with a 12-inch metal knife with an eight-inch blade; (ii) evidence that suggested the crime’s perpetrator stole a TV; and (iii) the presence of masculine clothing items, including a black Chicago Bulls shirt, blue jeans with suede material, and Fila sneakers. Detectives Dusak and Santiago prepared detailed reports documenting their examination of the crime scene. While investigating the crime scene, the on-scene Defendants learned that an individual named Roland St. James had been seen attempting to sell Ms. Talley’s stolen TV. After following this lead, the on-scene Defendants determined that Mr. St. James, as well as a friend of Mr. St. James," }, { "docid": "10147365", "title": "", "text": "activity on the premises of RNR in order to shut down RNR.” During this time period, David Rutten-berg would pay Jeffrey Price, a homeless individual, to clean up RNR. When David Ruttenberg became aware that Price had an arrest record, David Ruttenberg confronted Price, who allegedly told David Ruttenberg that he was working for the police and not engaged in any illegal activity- Nonetheless, between February 25, 2004 and April 19, 2004, Detective White was involved in eight drug transactions at RNR, seven of which involved Price in some way. Plaintiffs claim that Kifer knew of the drug transactions allegedly engineered by Detective White and Price, but, in contravention of company policy, continued to allow known or suspected drug dealers to enter the RNR premises. Then, on June 2, 2004, the Narcotics Task Force raided RNR with fifty police and law enforcement personnel. Plaintiffs contend that only 6 or 7 of the law enforcement personnel were ABC agents, and that many of the participants were SWAT team members. During the raid, plaintiffs allege that RNR patrons and employees were detained and searched. Additionally, David Ruttenberg’s private office, which plaintiffs contend is not subject to the ABC permit, was searched by unidentified officers. The night of the raid, David Ruttenberg, accompanied by a friend who was a police officer on sabbatical from Prince William County Police Department, went to the Northern Virginia Electrical Coop to pay RNR’s electric bill. Upon arriving at the parking lot, plaintiffs claim that two Prince William County police cruisers blocked David Ruttenberg’s car, and then emerged from the police cruisers with weapons drawn and pointed at David Ruttenberg and his friend. Once David Ruttenberg’s friend identified himself, the officers immediately withdrew. Plaintiffs allege these officers were members of the Narcotics Task Force acting at the direction of Detective Lugo. At this time, plaintiffs further claim that Mayor Jones and Chief Evans began patrolling the area around RNR to obtain information about alleged illegal activity occurring at RNR. Specifically, David Rut-tenberg claims that he and others observed defendant Mayor Jones outside RNR at odd hours of the" }, { "docid": "10147367", "title": "", "text": "night, including past midnight on numerous occasions. As a result of the raid, the ABC Board identified four violations at RNR: (i) disorderly conduct (based on information provided by Detective White that on three occasions female patrons exposed their breasts); (ii) meeting or rendezvous for users of nareotics/drunks/etc.; (iii) kept or allowed to be kept unauthorized alcoholic beverages; and (iv) consumption of alcoholic beverages by a person less than (21) years of age. Based on these violations, in late 2005, the ABC Board held an eviden- tiary hearing and revoked Triple D’s ABC license. Plaintiffs do not allege here that they were denied due process during the ABC hearing; rather, they contend that the revocation of the ABC license stemmed from the “intentional, illegal, conscience shocking actions of’ the defendants. Then, in 2006 the Manassas Park City Council voted to deny Triple D’s request to renew its conditional use permit. Both decisions are currently on appeal, the revocation of the ABC license has been appealed to the ABC Board and the denial of the conditional use permit has been appealed to the Circuit Court for Prince William County, Virginia. Distilled to their essence, the complaint’s allegations amount to the following: (i) That Detective Lugo held a grudge against David Ruttenberg and thus conspired with Detective White, Chief Evans, Mayor Jones, and Kifer to harm David Ruttenberg’s business by causing the loss of Triple D’s ABC license and the denial of Triple D’s attempt to renew its conditional use permit; (ii) To accomplish this goal, defendants conspired to facilitate undercover drug transactions at RNR so that the ABC Board would have evidence sufficient to revoke RNR’s license; (iii) In this regard, Detective White, acting undercover, arranged to enter into 8 drug transactions on the premises of RNR; (iv) Then, Detective Lugo conspired with others to raid RNR under the guise of an ABC administrative search; (v) This raid uncovered four ABC violations: (a) disorderly conduct (specifically, three incidents of female patrons at RNR exposing then-breasts); (b) RNR’s role as a meeting place or rendezvous for users of narcotics/drunks/etc.; (c) the presence" }, { "docid": "10147389", "title": "", "text": "claim is proper because plaintiffs’ complaint fails to allege any facts demonstrating an agreement amongst the alleged co-conspirators. See Ballinger v. North Carolina Agricultural Extension Service, 815 F.2d 1001, 1006 (4th Cir.1981) (stating that an essential element of a conspiracy to deprive a plaintiff of his constitutional rights is an agreement to do so). Plaintiffs bringing a conspiracy claim must allege facts establishing a “unity of purpose or common design” to injure plaintiffs. See American Tobacco Co. v. United States, 328 U.S. 781, 810, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). Importantly, “[t]he mere fact that each of the[ ] actors played a part in the events is not sufficient to show a unity of purpose.” Brown v. Angelone, 938 F.Supp. 340, 346 (W.D.Va.1996). Thus, where, as here, “the complaint makes only conclusory allegations of a conspiracy under § 1983 and fails to demonstrate any agreement or meeting of the minds among the defendants, the court may properly dismiss the complaint.” Id.; Scinto v. Preston, 170 Fed.Appx. 834, 836 (4th Cir.2006) (“[C]onclusory allegations of conspiracy do not state a claim for relief-under § 1983.”). Accordingly, plaintiffs’ claim must be dismissed. F. State Claims As all of plaintiffs’ federal claims, over which there is jurisdiction pursuant to 28 U.S.C. § 1331, have been dismissed, plaintiffs’ state law claims contained in Count VI, Count VII, and Count VIII, will be dismissed without prejudice, pursuant to 28 U.S.C. § 1367(c); United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (explaining that supplemental jurisdiction “is a doctrine of discretion”); Shanaghan v. Cahill, 58 F.3d 106, 109 (4th Cir.1995) (noting that “[t]he doctrine of supplemental jurisdiction indicates that federal courts generally have discretion to retain or dismiss state law claims when the federal basis for an action drops away”). Accordingly, for these reasons, and for good cause, It is hereby ORDERED that defendant Detective White’s motion to dismiss; defendants Detective Lugo; City of Manas-sas Park, Virginia; Frank Jones; and John Evans’s motion to dismiss; and defendant Kifer’s motion to dismiss are GRANTED insofar as Claims 1 through 5 are" }, { "docid": "10147390", "title": "", "text": "do not state a claim for relief-under § 1983.”). Accordingly, plaintiffs’ claim must be dismissed. F. State Claims As all of plaintiffs’ federal claims, over which there is jurisdiction pursuant to 28 U.S.C. § 1331, have been dismissed, plaintiffs’ state law claims contained in Count VI, Count VII, and Count VIII, will be dismissed without prejudice, pursuant to 28 U.S.C. § 1367(c); United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 16 L.Ed.2d 218 (explaining that supplemental jurisdiction “is a doctrine of discretion”); Shanaghan v. Cahill, 58 F.3d 106, 109 (4th Cir.1995) (noting that “[t]he doctrine of supplemental jurisdiction indicates that federal courts generally have discretion to retain or dismiss state law claims when the federal basis for an action drops away”). Accordingly, for these reasons, and for good cause, It is hereby ORDERED that defendant Detective White’s motion to dismiss; defendants Detective Lugo; City of Manas-sas Park, Virginia; Frank Jones; and John Evans’s motion to dismiss; and defendant Kifer’s motion to dismiss are GRANTED insofar as Claims 1 through 5 are DISMISSED WITH PREJUDICE and Claims 6 through 8 are DISMISSED WITHOUT PREJUDICE. It is further ORDERED that defendant Prince William County’s motion to stay and defendant Prince William County’s motion to abstain are DENIED. The Clerk is directed to send a copy of this Order to all counsel of record and to place this matter among the ended causes. . The facts recited herein are derived from plaintiffs' complaint and construed in the light most favorable to plaintiffs. See Revene v. Charles County Comm’rs, 882 F.2d 870, 872 (4th Cir.1989). . As a preliminary matter, defendants’ motion to abstain or stay this matter pending resolution of plaintiffs' appeal to the ABC Board and the Circuit Court for Prince William County, Virginia is unpersuasive. Specifically, Younger abstention is appropriate only where (i) there is an ongoing state judicial proceeding; (ii) the proceeding implicates important state interests; and (iii) there is an adequate opportunity to present the federal claims in the state proceeding. Cinema Blue v. Gilchrist, 887 F.2d 49, 52 (4th Cir.1989). Here, however, Younger abstention" }, { "docid": "21119390", "title": "", "text": "OPINION PAUL L. FRIEDMAN, District Judge. This matter is before the Court on defendant’s motion to dismiss and plaintiffs motion for partial summary judgment. Plaintiff served in the administration of the defendant, Anthony Williams, Mayor of the District of Columbia, as Director of the District of Columbia Office of Human Rights from February 2000 until his termination in June 2002. The complaint asserts five claims arising from plaintiffs termination: deprivation of a protected liberty interest without due process of law (Count I), false light invasion of privacy (Count II), defamation (Count III), wrongful termination (Count IV)> and intentional infliction of emotional distress (Count V). Defendant is sued in both his individual and official capacities. Defendant has filed a motion to dismiss the complaint for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure and for failure to state a claim under Rule 12(b)(6). Upon consideration of the parties’ arguments and the entire record of the case, the Court grants defendant’s motion to dismiss Counts II, III and V of the complaint for lack of subject matter jurisdiction, but denies plaintiffs motion to dismiss Counts I and IV for failure to state a claim. The Court does dismiss these two claims against Mayor Williams in his individual capacity, however, because these claims are barred by absolute and qualified immunity. Finally, the Court denies plaintiffs motion for partial summary judgment. I. BACKGROUND The facts alleged in the complaint are as follows: Plaintiff Charles Holman, served in defendant Anthony Williams’s administration as Director of the District of Columbia Office of Human Rights (“OHR”) from February 2000 to June 2002. See Complaint (“Compl.”) ¶ 5. In late June or early July 2001, the defendant’s then-Chief of Staff, Joy Arnold, called a meeting attended by plaintiff and others. See id. ¶ 7. At that meeting Barbara Bullock, then the president of the Washington Teachers’ Union, demanded that plaintiffs office, the District of Columbia Office of Human Rights, enter into a contract with Curtis Lewis & Associates (“CLA”) for the review of complaints filed with OHR. See id. Plaintiff rejected" }, { "docid": "5940302", "title": "", "text": "of agency communications systems, and for misrepresenting agency practice. See id. ¶ 29. On April 28, 2006, plaintiff filed a complaint in this Court asserting violations of her First Amendment rights (Counts I and II), her Fifth Amendment due process rights (Counts III and IV), the D.C. Whis-tleblower Protection Act (Counts V, VI and VII), the District of Columbia and federal Family and Medical Leave Acts (Count VIII), and 42 U.S.C. § 1985 alleging conspiracy (Count IX). Defendants now move to dismiss plaintiffs complaint for failure to state a claim under Rule 12(b)(6) or, in the alternative, for summary judgment under Rule 56 of the Federal Rules of Civil Procedure. II. DISCUSSION A. Local Civil Rules Defendants seek dismissal or, alternatively, summary judgment. In deciding a motion to dismiss for failure to state a claim, of course, the Court is limited to the four corners of the complaint. See infra at 6-7. On a motion for summary judgment, the question is whether there are genuine issues of material fact in dispute, and the Court may consider matters outside the pleadings — including affidavits, declarations, deposition excerpts, and other competent evidence — in determining whether there are. See Fed.R.Civ.P. 56(e). In addition, in this circuit, the party moving for summary judgment must file with each such motion “a statement of material facts as to which the moving party contends there is no genuine issue, which shall include references to the parts of the record relied on to support the statement.” L. Crv. R. 7(h); see also L. Civ. R. 56.1 (same). In this case, defendants have failed to comply with the Local Rules by not providing such a statement. For that reason, this Court will deny the motion insofar as it is one for summary judgment, and will consider it solely as a motion to dismiss under Rule 12(b)(6). To be sure, defendants provide a narrative statement of facts in their memorandum of law and have submitted a stack of documents — notices, letters, e-mails, and memoranda — with their motion. But the “facts” included in defendants’ memorandum of law cannot" }, { "docid": "20409067", "title": "", "text": "his complaints about civil rights violations. Because of the loss of the tax benefits, Mr. Greco and the Development Corporations have incurred financial damage. F. Litigation The Plaintiffs filed the instant action on April 4, 2011. The complaint contains eight counts. In Count I, Mr. Greco and the Entertainment Corporations assert claims under 42 U.S.C. §§ 1983 and 1985 against all Defendants for a violation of the Equal Protection Clause. In Count II, Mr. Greco and the Entertainment Corporations assert claims under 42 U.S.C. §§ 1981, 1982, 1983, and 1985 against all Defendants, alleging retaliation and a conspiracy. In Count III, Mr. Greco and the Entertainment Corporations assert a claim under the Due Process Clause against all Defendants. In Count IV, Mr. Greco and the Development Corporations assert a § 1983 claim against the City, Mayor Leighton, and the City Council member Defendants, • alleging a violation of the Equal Protection Clause and substantive Due Process. In Count V, all Plaintiffs assert state tort claims against all Defendants, alleging tortious interference with business relationships, trade disparagement, and defamation. In Count VI, Mr. Greco and the Entertainment Corporations assert a violation of 24 P.S. § 5004(a)(3) against the College Defendants. In Count VII, Mr. Greco asserts claims under §§ 1981, 1982, 1983, and 1985 against Mayor Leighton and Chief Dessoye, alleging retaliation. Finally, in Count VIII, Plaintiffs seek attorneys fees under 42 U.S.C. § 1988. The City Defendants and the College Defendants each filed motions to dismiss on June 6, 2011. The County Defendants moved to dismiss on June 15, 2011. The motions have been fully briefed and are ripe for disposition. II. Legal Standard Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. Dismissal is appropriate only if, accepting as true all the facts alleged in the complaint, a plaintiff has not pleaded “enough facts 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," }, { "docid": "10147360", "title": "", "text": "ORDER ELLIS, District Judge. The matter came before the Court on (i) defendant Detective White’s motion to dismiss [docket #4]; (ii) defendants Detective Lugo; City of Manassas Park, Virginia; Frank Jones; and John Evans’s motion to dismiss [docket # 6]; (iii) defendant Thomas Kifer’s answer and motion to dismiss [docket #58]; (iv) defendant Prince William County’s motion to stay [docket #28]; and (v) defendant Prince William County’s motion to abstain [docket #29]. These matters have been fully briefed and the parties have presented oral argument. Accordingly, these motions are now ripe for disposition. I. On April 15, 1992, plaintiff, Triple D. Enterprises, Inc. (“Triple D”), a Maryland Corporation with its principal place of business in Manassas Park, Virginia, opened Rack & Roll Billiard Club (“RNR”) in the Manassas Park Shopping Center. The following year, on September 10,1993, RNR received its Virginia Alcoholic Beverage Control (“ABC”) license to sell beer on the premises. Plaintiffs David Ruttenberg and Judith Ruttenberg, who are both citizens and residents of Maryland, own and operate Triple D. The defendants are (i) Mario Lugo, a detective with the Manassas Park Police Department; (ii) John Evans, the Chief of Police of Manassas Park, Virginia; (iii) Frank Jones, Mayor of the City of Manas-sas Park; (iv) the City of Manassas Park; (v) Robert White, a detective with the Prince William County Police Department; and (vi) Thomas Kifer, an RNR security officer and police informant. In the fall of 2001, Detective Lugo began to date Nina Buell, a friend of plaintiff David Ruttenberg. According to plaintiffs, Lugo “did not like David Ruttenberg’s friendship with Buell.” At that time, Tina McKnight, an RNR waitress, informed David Ruttenberg that Buell had told her of a conversation with Detective Lugo, in which Lugo informed Buell that David Ruttenberg was under investigation for cocaine use and distribution. David Rutten-berg called Detective Lugo to discuss the allegation, and according to plaintiffs, Lugo “threatened” McKnight, until she retracted her previous statement. Plaintiffs allege that Detective Lugo then told David Ruttenberg that “he would ‘take down’ David Ruttenberg and RNR if he heard anything more about the" }, { "docid": "10147364", "title": "", "text": "who denied knowledge of Detective Lugo’s activities. Plaintiffs concede that at that time no raid of RNR took place. Thereafter, in late 2003 or early 2004, Detective Lugo became the case agent for a Narcotics Task Force investigation into David Ruttenberg’s alleged cocaine use and distribution at RNR. At that time, Detective Lugo contacted defendant Kifer, a convicted felon and former employee of RNR. Plaintiffs allege that Kifer agreed to become a paid informant and assist Detective Lugo in investigating David Rutten-berg and RNR because Kifer held a grudge against David Ruttenberg. In early 2004, Kifer resumed working for David Ruttenberg as a security officer at RNR and was informed of RNR’s policy of not allowing drug dealers on the premises. At the same time, in February 2004, Detective Lugo recruited defendant Detective White to work for the Narcotics Task Force in the investigation of David Rutten-berg and RNR. Detective Lugo allegedly told Detective White that RNR was an “open air drug market.” Plaintiffs allege that defendants Lugo, White, and Kifer “conspired to engineer drug activity on the premises of RNR in order to shut down RNR.” During this time period, David Rutten-berg would pay Jeffrey Price, a homeless individual, to clean up RNR. When David Ruttenberg became aware that Price had an arrest record, David Ruttenberg confronted Price, who allegedly told David Ruttenberg that he was working for the police and not engaged in any illegal activity- Nonetheless, between February 25, 2004 and April 19, 2004, Detective White was involved in eight drug transactions at RNR, seven of which involved Price in some way. Plaintiffs claim that Kifer knew of the drug transactions allegedly engineered by Detective White and Price, but, in contravention of company policy, continued to allow known or suspected drug dealers to enter the RNR premises. Then, on June 2, 2004, the Narcotics Task Force raided RNR with fifty police and law enforcement personnel. Plaintiffs contend that only 6 or 7 of the law enforcement personnel were ABC agents, and that many of the participants were SWAT team members. During the raid, plaintiffs allege that RNR" }, { "docid": "22812148", "title": "", "text": "321.) But Fournier’s role in the second prosecution was limited to testifying. There is nothing in the record to suggest that Fournier did anything “outside the courtroom” leading up to the second trial that would support Moldowan’s claim. Accordingly, Fournier is entitled to absolute immunity as to Count XXXVI. See Briscoe, 460 U.S. at 342-45, 103 S.Ct. 1108. VII. For all of the reasons set forth above, we hereby: (1) hold that we lack jurisdiction to consider Defendants’ interlocutory appeals from the denial of summary judgment as to Counts I, II, III, IV, • and XXXIII and thus DISMISS Defendants’ appeals as to those claims, but DENY Moldowan’s motions to dismiss with respect to all other Counts; (2) REVERSE the judgment of the district court and grant summary judgment as to Counts V, VI, VII, VIII, XVI, XVII, XVIII, XIX, and XXXIV on the ground that Moldowan failed to plead his conspiracy claims with the requisite specificity; (3) REVERSE the judgment of the district court and grant summary judgment as to Counts XIII, XIV, XV, XXII, and XXXVI on the ground that Defendants are entitled to immunity as to • these claims; (4) REVERSE the judgment of the district court and grant summary judgment as to Counts XVI, XVII, XVIII, and XIX on the ground that § 1983 cannot support a claim against Fournier, a private individual, under these circumstances; (5) REVERSE the judgment of the district court and grant summary judgment as to Count XXIII on the ground that 18 U.S.C. § 1503 does not provide a private right of action and cannot support a civil claim for damages under § 1983; (6) REVERSE the judgment of the district court and grant summary judgment as to Count XXX on the ground that Michigan law does not support a claim for malicious prosecution against a victim complainant under these circumstances; (7) REVERSE the judgment of the district court and grant summary judgment as to Count XXXI on the ground that Michigan law does not support a claim for malicious prosecution against Detective Ingles under these circumstances; and (8) AFFIRM the" }, { "docid": "10147363", "title": "", "text": "present in the courtroom when David Ruttenberg appeared. After this incident, David Ruttenberg and Neil Ruttenberg, plaintiffs father, visited defendant John Evans, the Manassas Park Police Chief, to inform Chief Evans of the wrongful acts perpetrated by his police officers. Plaintiffs claim that Chief Evans took no action on these complaints. In Spring 2003, David Ruttenberg’s female friend informed him that the Narcotics Task Force asked her to facilitate drug transactions on the premises of RNR in exchange for her not being prosecuted for charges of driving while intoxicated. Plaintiffs claim that the true purpose of offering not to prosecute his female friend was to search for evidence that would create grounds for the revocation of Triple D’s Alcoholic Beverage Control (“ABC”) license and conditional use permit. To this end, plaintiffs claim that Detective Lugo attempted to engineer a meeting of drug users at RNR, so that the Narcotics Task Force could raid RNR during the meeting. David Ruttenberg learned of Detective Lugo’s alleged plan through his female friend, and immediately complained to Chief Evans, who denied knowledge of Detective Lugo’s activities. Plaintiffs concede that at that time no raid of RNR took place. Thereafter, in late 2003 or early 2004, Detective Lugo became the case agent for a Narcotics Task Force investigation into David Ruttenberg’s alleged cocaine use and distribution at RNR. At that time, Detective Lugo contacted defendant Kifer, a convicted felon and former employee of RNR. Plaintiffs allege that Kifer agreed to become a paid informant and assist Detective Lugo in investigating David Rutten-berg and RNR because Kifer held a grudge against David Ruttenberg. In early 2004, Kifer resumed working for David Ruttenberg as a security officer at RNR and was informed of RNR’s policy of not allowing drug dealers on the premises. At the same time, in February 2004, Detective Lugo recruited defendant Detective White to work for the Narcotics Task Force in the investigation of David Rutten-berg and RNR. Detective Lugo allegedly told Detective White that RNR was an “open air drug market.” Plaintiffs allege that defendants Lugo, White, and Kifer “conspired to engineer drug" }, { "docid": "10147361", "title": "", "text": "Mario Lugo, a detective with the Manassas Park Police Department; (ii) John Evans, the Chief of Police of Manassas Park, Virginia; (iii) Frank Jones, Mayor of the City of Manas-sas Park; (iv) the City of Manassas Park; (v) Robert White, a detective with the Prince William County Police Department; and (vi) Thomas Kifer, an RNR security officer and police informant. In the fall of 2001, Detective Lugo began to date Nina Buell, a friend of plaintiff David Ruttenberg. According to plaintiffs, Lugo “did not like David Ruttenberg’s friendship with Buell.” At that time, Tina McKnight, an RNR waitress, informed David Ruttenberg that Buell had told her of a conversation with Detective Lugo, in which Lugo informed Buell that David Ruttenberg was under investigation for cocaine use and distribution. David Rutten-berg called Detective Lugo to discuss the allegation, and according to plaintiffs, Lugo “threatened” McKnight, until she retracted her previous statement. Plaintiffs allege that Detective Lugo then told David Ruttenberg that “he would ‘take down’ David Ruttenberg and RNR if he heard anything more about the issue.” That evening, David Ruttenberg called Detective Lugo’s superior, Officer Larry Berry of the Manassas Park Police Department, and informed him of Detective Lugo’s threats and activities, and indicated that “defendant Lugo seemed intent on destroying David M. Ruttenberg and RNR with his allegations that David Ruttenberg was under some kind of criminal investigation for drug distribution.” According to plaintiffs, Officer Berry then cancelled a “ride-along” that Detective Lugo had arranged for himself and Buell. Thereafter, in late 2001, plaintiffs claim that Detective Lugo initiated a plan to retaliate against David Ruttenberg. The plan began, when, according to plaintiffs, in December 2001, Detective Lugo initiated “bogus charges” against David Rut-tenberg. Specifically, David Ruttenberg reported that an employee had stolen equipment from RNR, but when he learned that the employee faced significant jail time, David Ruttenberg decided not to pursue the complaint, and as a result, was charged with filing a false police report. The charges were subsequently dropped. Plaintiffs contend Detective Lugo was involved in bringing the charges against David Ruttenberg because Detective Lugo was" } ]